Stephanie Solis v. Everett, City of - Office of the City Clerk (SPR 20191375)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 25, 2019 SPR19/1375 Sergio Cornelio City Clerk City of Everett 484 Broadway, Room 10 Everett, MA 02149 Dear Mr. Cornelio: I have received the petition of Stephanie Solis of Mass Live appealing the response of the City of Everett (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 20, 2019, Ms. Solis requested" ... emails sent or received by Everett elected officials between May 13, 2019 and the present that include any of the following keywords: 'Encore,' 'Wynn,' 'MGM,' and/or 'casino."' Ms. Solis mentioned that "[t]his includes, but is not limited to, emails sent/received by [11 identified email addresses]." The City provided an initial response on May 20, 2019, acknowledging receipt of the request and advising Ms. Solis of potential fees that may be incuned while compiling the records. The City provided another response dated May 21, 2019, indicating that it does not possess responsive records. The City provided a supplemental response on June 29, 2019. Unsatisfied with the City's response, Ms. Solis petitioned this office and this appeal, SPRl 9/1375, 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. 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

Sergio Cornelio SPR19/1375 Page 2 July 25, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's May 2P1 and June 291 responses " In its May 21, 2019 response, the City indicates that it " ... does not have access to the personal email accounts of the Everett City Council." In an email dated June 29, 2019, Ms. Solis clarified her request, indicating that she is" ... asking about city-issued emails ending in . " @ c1. everett.ma. us. In its June 29, 2019 response, the City states that" ... the City Council[ors] do not use their City emails, though they are set up. [The City] do[e s] know one Councilor just started to use the City email in the past few weeks, but other than her, none of the Council have this email set up, they all use their personal emails which are not on the City server so [the City] cam1ot access them." Public records; public employees/officials The City 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 does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the mam1er in which it exists, constitutes "public records." Further, public employees have 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). 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). Records Management Please be aware safeguards must be instituted by the City 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, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the City may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request.

Sergio Cornelio SPR19/1375 Page 3 July 25, 2019 Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 1O (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 must be transferred on a regular and frequent basis to secure storage in the municipal building. Office of the Sec'y of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law (2017); see also G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. Based on the City's response, it is unclear why the City cannot retrieve the records responsive to Ms. Solis' request from the City Council members. The City is advised that 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, § 1O (a)(ii). Conclusion Accordingly, the City is ordered to provide Ms. Solis 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephanie Solis