Catherine Clairmont v. Edgartown, Town of - Town Clerk (SPR 20190097)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 30, 2019 SPR19/0097

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, § 10A; see also 950 C.MLR. 32.08(1). Specifically, on November 11, 2018, Mr. Kager requested nine categories of records pertaining to WasteWater Commission/Commissioners, including “{a]ll email or other communications between the Commissioners, Commissioners and staff and Commissions and other third-parties as requested . . . Please ensure these include emails from the Commissioners private email accounts as previously discussed.”

Previous appeal

This request was the subject of a previous appeal. See SPR18/2091 Determination of the Supervisor of Records (January 9, 2019). In my January 9"" determination, the appeal was closed after the Town confirmed in an email sent to this office on January 9, 2019 that all responsive records had been provided. Ms. Clairmont appealed this response and SPR19/0099 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, § 10A(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, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist.

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 SPR19/0097 ‘Page 2 January 30, 2019

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 imust not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record.

Current appeal

In its January 9" response the Town asserts “[t]he Town of Edgartown (the ‘Town’) has provided you with records that fulfill the following” and list two categories of records. This includes: “1. All correspondence to and from The Wastewater Commissioners, the Wastewater staff and the following individuals...” and.““2. All correspondence to and from The Wastewater Commissioners, the Wastewater staff.”

In her appeal, Ms. Clarimont claims “[w]e know of several emails on this matter by the Waste Water Commissioners from their private email accounts and would request that you work with them and their service providers to retrieve all the records requested.”

In light of the Town’s response and Ms. Clairmont’s claim, | find it is unclear why additional responsive records haves not been provided; specifically, the Town must explain whether private emails existed between the Commissioners and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)Gi).

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. 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 must is ordered to provide Ms. Clairmont 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.

Lalorea

Rebecca Rulberea Murray . Supervisor of Records

cc: Catherine Clairmont