Catherine Clairmont v. Edgartown, Town of - Town Clerk (SPR 20182075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2019 SPRlS/2075 James Hagerty Town Administrator Town of Edgartown P.O. Box 35 Edgartown, MA 02539 Dear Mr. Hagerty: I have received the petition of Catherine Clairmont appealing the response of the Town of Edgartown (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 11, 2018, Mr. Kager requested nine categories ofrecords pertaining to Waste Water Commission/Commissioners, including "the audio of the March 2017 WWC meeting." Previous appeal This request was the subject to two previous appeals, SPR18/l 710 and SPR18/2025. See Determination of the Supervisor of Records (November 30, 2018); Determination of the Supervisor of Records (December 19, 2018). This was office was notified that the responsive records were sent to Ms. Clairmont via certified mail on December 19, 2018. Current appeal Ms. Clairmont is appealing the Town's December 19th response as incomplete. Ms. Clairmont indicated she picked up a thumb drive from the Town which had "mostly records received before along with several record under appeal," and also noted "one missing record." Ms. Clairmont indicated this record is "the audio of the March 2017 WWC meeting." The Town indicated in an email on December 20th that "not all Waste Water Commission meetings are audio recorded." Ms. Clairmont indicated, "as reported to us by WW staff, all meetings are recorded in order to produce minutes." Ms. Clairmont contends "the recording of March 2017 WWC meeting is not being produced or was destroyed" and asks that the Town "please search for the recording of the March 2017 WWC meeting and produce it as requested or make a definitive statement about why this particular audio has not been produced." 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 Hagerty SPR18/2075 Page2 January 7, 2019 No duty to create records A staff member of the Public Records Division contacted the Town and the Town indicated they are not in possession of an audio recording for the March 2017 WWC meeting. While 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, it is unclear whether a recording of the meeting ever existed. See G. L. c. 66, § 10(a )(ii). Conclusion Accordingly, the Town is ordered to provide a response to Ms. Clairmont clarifying whether the recording was created and if so whether they are in possession of the record or if it was permissibly destroyed. This response must be made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Clairmont may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Catherine Clairmont