J. Shannon Bianchi v. Nahant, Town of - Town Clerk (SPR 20181890)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2018 SPRlS/1890 Margaret R. Barile Town Clerk Town of Nahant 334 Nahant Road Nahant, Massachusetts 01908 Dear Ms. Barile: I have received the petition of John Shannon Bianchi appealing the response of the Town of Nahant (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bianchi submitted four requests for records related to the Town Administrator, certain meetings, and identified search terms. Previous appeal This request was the subject of a previous appeal. See SPR18/1275 Determination of the Supervisor of Records (September 7, 2018). In my September ?111 determination I ordered the Town to provide Mr. Bianchi with a response provided in a manner consistent with the order, the Public Records Law, and its Access Regulations (Regulations). The Town responded on September 20, 2018. Mr. Bianchi appealed and SPRl 8/1890 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, § IOA(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). 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

Margaret R. Barile SPR18/1890 Page2 December 18, 2018 Current appeal In his initial appeal petition Mr. Bianchi indicated he made requests on April 9, 2018; July 11, 2018; July 13, 2018 and July 19, 2018. In its September 20th response the Town asserts that it" ... has responded to all of your requests for public records and, after this office's diligent review, has provided you with all responsive records, including emails in response to your requests. As such, the Town has complied with its obligations under the Public Records Law.'" ih April request Mr. Bianchi's April 9th request was for" ... emails to or from Jeff Chelgren, previous Town Administrator for the Town of Nahant" and he provides several search terms. In the September 20th response you assert "the Town responded to this request and provided you with e-mails responsive to this request on August 1, and August 23 2018. All responsive documents have been provided." In his appeal petition Mr. Bianchi indicates "[t]he Town claims it has provided all records for the April 9 Request. This is inaccurate. I am in possession of records that match the criteria of the Requests that were not included in the Town's Response." He provides various reasons in support of his position, including referring to responsive documents he is aware of from other sources of which he has personal knowledge. Mr. Bianchi also explains that he was told about an email search that yielded many emails and describes his reason to believe that records exist that pertain to the planning and follow up of certain committee and Board of Selectmen meetings. He also notes "[f]urthermore, there were numerous emails received in the Responses that contained attached documents, but the attachments weren't provided." Mr. Bianchi asserts that" ... it is reasonable to believe that there were multiple emails sent and received by the Town Administrator that match the criteria in the April 9 Request, and that records do in fact exist. If true, then the Town has either refused to or failed to provide these records in the Responses." The Town provided a supplemental response on December 18, 2018. With respect to the April 9th request you note that "[t]he Town did conduct a search for key words. Jeff Chelgren, McCauley, Northeastern, Master Plan and Northeastern, SWIM and Northeastern, SWIM, and /S.W.I.M and or Safer Waters in Massachusetts." July 1th request Mr. Bianchi's July 11th request was for "[a]ll electronic communications, in the form of Text Messages or Emails from November 1, 2017 to present day, July 11, 2018" and he provides several search terms. The Town asserts that "[t]his office provided you with an update on August

Margaret R. Barile SPR18/1890 Page 3 December 18, 2018 8, 2018; a response to this request was provided on August 10, 2018. All responsive documents have been provided." In his appeal petition Mr. Bianchi notes "the Town claims it has provided all responsive documents to the July 11th Request. This is inaccurate. On July 13, the day after our new Town Administrator, was chosen by the Board of Selectmen, I submitted a Records Request with the Massachusetts DOER (his employer at the time), similar to the July 11th Nahant Request, for emails between him and any member of the Board of Selectmen, or the interim TA. The DOER provided me with 6 email exchanges[]. However, the Town has yet to respond to the July 11th Request, which shared similar criteria. In theory, if they exist at the DOER, they should exist at Town Hall, and should have been provided." July 1i h request Mr. Bianchi's July 13th request was for agendas, minutes, and electronic communications regarding Board of Selectmen Meetings and the Municipal Vulnerability Committee. The Town asserts that "a response to this request was provided on August 3, 2018. All responsive documents have been provided." In his appeal petition Mr. Bianchi asserts "[t]he Town claims that a response was provided for the July 13 request on August 3rd. This is inaccurate." Specifically he indicates that "[o ]n August 3rd, I was only given agendas and minutes for the MVP Committee; nothing else. After downloading every Selectmen Meeting back to 2015 from the Town website, and reading through them, I eventually found the BOS minutes and agendas related to the MVP Committee myself. Additionally, and similar to #3, the Records Request sent to the DOER generated emails that matched the search criteria for the July 13th Request. If records exist at the DOER, then again, in theory, the same records should exist at Town Hall and should have been provided in the Town's Response." July 1i h request Mr. Bianchi's July 19th request was for minutes from the Nahant Town Administrator Search Committee, as well as electronic communications between identified individuals. The Town asserts that "[a]s an initial matter, the email portion of the July 19, 2018 public records requests was cancelled on July 20, 2018. All responsive documents have been provided." In his appeal petition Mr. Bianchi explains "[t]he Town claims that all responsive documents have been provided for the July 19 Request. This is inaccurate. I haven't received anything at all from the Town in response to the July 19 Request." Existence ofr esponsive records; records retention In its December 18th response the Town indicates "Mr. Bianchi states he is in possession ofrecords that match the criteria of the Requests that were not included in the Town's Response.

Margaret R. Barile SPR18/1890 Page 4 December 18, 2018 That he was given numerous emails by a local attorney who had received them in May from the Town through a separate and umelated public records request. Such information is not relevant to this appeal since it pertains to a wholly separate request." You also note that" ... due to the voluminous nature of the request and the Town's IT and the Town's diligent review of the request and its records that may be responsive, the Town's Information Technology Consultant worked and consulted with the Town Clerk to address Mr. Bianchi's requests. The Town's IT is not in house and the Town Clerk needed his assistance via email or sometimes in person to assist in this task several times. Of the 3,000 emails Mr. Bianchi references that figure does not mean that all 3,000 are responsive to his request." The Town also indicates that" ... the Town Clerk worked with IT to resolve these issues as quickly as possible given the Town's limited staffing resources and the other obligations of the Town Clerk's Office and Mr. Bianchi agreed to all extensions of time. Further, all requests have been responded to, and, as such, the Town maintains that there are no additional responsive records." 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 of records at the time of the request. See G. L. c. 66, § IO(a)(ii). In light of the issues raised in Mr. Bianchi's appeal regarding the existence ofresponsive records, and despite the Town's responses, I find it is unclear why additional responsive records have not been provided; specifically, the Town must explain whether responsive records existed and were destroyed, or whether the records did not initially exist.. See G. L. c. 66, § 1 O(a)(ii), (b )(ii). If such records were destroyed, the Town must demonstrate whether it followed proper records retention protocol. Please note, the Town must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the Records Retention Manual, available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the Town is ordered to provide Mr. Bianchi with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Shannon Bianchi Janelle M. Austin, Esq.