Thomas Coulombe v. Ware, Town of - Town Manager (SPR 20191887)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 25, 2019 SPR19/1887 Stuart Beckley Ware Town Manager 126 Main Street Ware, MA 01082 Dear Mr. Beckley: I have received the petition of Chief Thomas Coulombe appealing the response of the Town of Ware (Town) to his request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Mr. Coulombe requested "emails, text messages ... and any and all correspondence referencing or referring to me [by name], referring to me as 'Chief between yourself, any individual member of the Board of Selectmen, the Board of Selectmen [a s a group] and Edward Wloch" for a specified time frame. Previous Appeals This request was the subject of two previous appeals. See SPR19/0721 Determination of the Supervisor of Records (April 19, 2019); SPR19/0562 Determination of the Supervisor of In Records (April 1, 2019). the April 19th determination, the Supervisor ordered the Town to provide Mr. Coulombe with a response to his request for records. The Town provided Chief Coulombe with a response on September 13, 2019 in the form of a jump drive containing responsive records. Unsatisfied with the Town's response, Chief Coulombe petitioned this office and this appeal, SPR 19/1818, 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, § IO(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@seo.state.ma.us

Stuart Beckley SPR19/1887 Page 2 September 25, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Appeal Chief Coulombe appeals the Town's response to his request for both emails and text messages. Emails In its September 13th response the Town states that it has "retrieved all the emails through the town system for those criteria." Chief Coulombe contends that "[s ]ince all members of the Board, as evidenced in your email folders, are using personal emails for Town business, those files pertaining to the Town are public infmmation." With respect to private email accounts maintained by Board members and other municipal officials, a public employee has a ''significantly diminished privacy interest with respect to information relevant to the conduct of his office." George W. Prescott Publ'g Co. v. Register of Probate for Norfolk Cty., 395 Mass. 274,278 (1985); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436"n. 15 (1983). The use of personal email addresses by government officials, employees, and/or board and commission members while conducting any business of a government entity renders the emails and email addresses public records. See G. L. c. 4, § 7(26). Courts have found that emails concerning public business do not fall outside the scope of public records laws simply because they are located within a private account. See Toensing v. Attorney Gen. ofVennont, 178 A.3d 1000, 1002 (Vt. 2017); City of San Jose v. Superior Court, Santa Clara Cty., 389 P.3d 848, 852 (Cal. 2017). It is the content of the record, not its location, that determines whether it is a public record. See G. L. c. 4, § 7(26). With respect to the Town's access to emails contained in privately-held accounts, a governmental entity is deemed to have control over records contained in accounts held by government officials. See Barkeyville Borough v. Stearns, 35 A.3d 91, 96 (Pa. Commw. Ct. 2012) (borough has legal control over emails contained in private email accounts held by individual Borough Council members); Comstock Residents Ass'n. v. Lyon Cty. Bd. Comm'rs, 414 P .3d 318, 323 (records stored on privately-owned phones of Board of Commissioners members are subject to the legal control of the county). Based on its response, I find the Town has not met its burden in responding to this request. In particular, it is unclear whether the Town possesses responsive records. Specifically, the Town must explain whether private emails belonging to the members of the Board of Selectmen were used for Town business, and if so, whether they contain records responsive to this request. See G. L. c. 66 § 10( a)(ii), (b )(ii).

Stuart Beckley SPR19/1887 Page 3 September 25, 2019 Texts In its September 13, 2019 email message, the Town indicated that intends to provide the text messages responsive to the request. The Town must provide these records in a manner consistent with the Public Records Law and its Regulations. See G. L. c. 66 § 10(a ). Conclusion Accordingly, the Town is ordered to provide Chief Coulombe a response 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: Chief Thomas Coulombe