Louis Petrozzi v. Walpole, Town of - Town Clerk (SPR 20181015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2018 SPRlS/1015 James Johnson Town of Walpole-Town Clerk 13 5 School Street Walpole, MA 02081 Dear Mr. Johnson: I have received the petition of Louis Petrozzi appealing the response of the Town of Walpole (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 14, 2018, Mr. Petrozzi requested the following records: 1. "Copies of all personal emails, correspondence, communications or any other material communicated to, from or between any member of the Zoning Board and any other person, including any public official, any member of the Planning Board, Conservation Commission, Town Engineer, etc., including the Town Administrator and other Town staff, regarding Wall Street and Wall Street's proposed development off Burns Avenue from August 1, 2016 through February 18,2018" 2. "Copies of all personal emails, correspondence, communications or any other material communicated to, from or between any member of the Planning Board and any other person, including any elected or appointed public official, the Zoning Board of Appeals, Conservation Commission, Town Engineer, Town Administrator and Town staff, including the Planning Board administrator and planner, regarding Wall Street and Wall Street's proposed development off Burns Avenue from August 1, 2016 through February 18, 2018" 3. "Copies of all personal emails, correspondence, communications or any other material communicated to, from or between any person, including any public official, any member of the planning board, Board of Appeals, Conservation Commission, etc., including the Town Administrator regarding the proposed development of Union Square Village, off Burns Avenue, or Wall Street Development Corp. ("Wall Street") from August 1, 2016 through January 31, 2018." One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

James Johnson SPR18/1015 Page 2 July 24, 2018 Mr. Petrozzi made a May 14th request as well as repeated prior requests made to the Town on November 24, 2017; January 31, 2018; February 19, 2018; and March 13, 2018. The Town provided its last response on May 29, 2018. Contending that the Town has not produced records responsive to his request, Mr. Petrozzi petitioned this office and this appeal, SPR18/1015, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's May 29th response In its May 29th response, the Town contends that Mr. Petrozzi's assertion that "the Town has not responded to [his] request for public documents or produced any documents requested in said letters referenced above[,]" is incorrect. The Town asserts that it has responded to Mr. Petrozzi's public records request and has "provided documents responsive to that request in its responses to other requests, as those records encompassed the records sought in the letter directed to the Board of Appeals." The Town claims that despite Mr. Petrozzi's questioning of the legitimacy of the Town's responses it" ... believes that it has responded, fully in good faith, to this request, connection with other contemporaneous records requests [Mr. Petrozzi] made for the same information" although worded slightly differently. The Town indicates that overall it has provided Mr. Petrozzi with over 400 pages of responsive records. Status as a public employee; additional responsive records; duty to assist The Town is reminded that the definition of a "public record" in Massachusetts is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition

James Johnson SPR18/1015 Page 3 July 24, 2018 does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." Further, a public employee has a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). Certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The use of personal email addresses by government officials, employees and/or board and commission members while conducting any day-to-day business of a government entity renders the emails public records. At least, one Court has found that the use of a public employee's personal email address in an official capacity renders the email addresses public records. See Mechling v. City of Monroe, 152 Wn. App. 830 (2009). The Town is advised that public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § IO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building. Despite the Town's claim that it has provided over 400 pages of documents responsive to Mr. Petrozzi's public records requests, in his petition for appeal, as well as other letters sent to the Town, Mr. Petrozzi continues to claim that he has not received records responsive to his requests. As such, it remains unclear if the Town possesses any additional records that would be responsive to Mr. Petrozzi's request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(b) . The Town is further reminded that it is under a duty to assist Mr. Petrozzi in identifying the records and respond in compliance with the Public Records Law. 950 C.M.R. 32.04(5). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion This office encourages the Town and Mr. Petrozzi to communicate further to enable the Town to provide Mr. Petrozzi with the requested records. Accordingly, the Town is ordered to provide Mr. Petrozzi with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

James Johnson SPR18/1015 Page 4 July 24, 2018 Sincerely, Rebecca S. Murra~ Supervisor of Records cc: Louis Petrozzi