Kendra Cooper, Esq. v. Reading, Town of - Town Clerk (SPR 20200646)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2020 SPR20/0646 Laura A. Gemme Town Clerk Town of Reading 16 Lowell Street Reading, MA 01867 Dear Ms. Gemme: I have received the petition of Attorney Kendra Cooper appealing the response of the Town of Reading (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 24, 2020 Attorney Cooper requested “access to the Minutes of the Reading Select Board meeting of February 11, 2020, including, but not limited to, discussion, actions taken and any possible text/email/ electronic messages (through members personal email addresses or phones) received during that meeting by any of the Select Board Members.” Previous Appeal This request was the subject of a previous appeal. See SPR 20/0513 Determination of the Supervisor of Records (March 20, 2020). In my March 20th determination, I ordered the Town to provide a response made in a manner consistent with this order, the Public Records Law and its Access Regulations as soon as practicable. The Town provided this response on March 30, 2020, producing responsive records, and explaining that it does not possess any additional records responsive to Attorney Cooper’s request. Claiming to not have received all the responsive records, Attorney Cooper petitioned this office and this appeal, SPR 20/0646, was opened as a result. Current Appeal In her appeal, Attorney Cooper states “I believe additional electronically obtained input and communication occurred during the February 11, 2020 meeting, whether through private text or email accounts, that was not included in Reading Town Clerk Laura Gemme's March 30 response.” While this appeal was pending, the Town provided a supplemental response to Attorney Cooper on April 25, 2020. In the its April 25th response, the Town indicated it again reached out 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

Laura A. Gemme SPR20/0646 Page 2 April 27, 2020 to the Select Board members stating an appeal had been filed and to “[p]lease ensure that you have considered all of your email accounts in use at the time - not simply an official Town of Reading supplied email address - when you sent your previous responses to the initial request.” The Town included copies of the correspondence with the Select Board members in its response to Attorney Cooper. The Select Board members confirmed they have no additional records responsive to the request. Attorney Cooper has responded to the Town’s April 25th response contending “the records response of the Reading Select Board to my February 24, 2020 request still is incomplete. It does not include text or electronic message systems (such as Chat, Instant Messaging, etc) that may have occurred among members and/or with the public during the February 11, 2020 Reading Select Board Meeting.” In its original March 30th response to Attorney Cooper, the Town confirmed it “sent a request to all Select Board Members asking for any electronic communications during the February 11, 2020 Select Board meeting.” Further, in a conversation with a Public Records Division staff attorney, the Town confirmed there are no additional records responsive to the request. Existence of Additional Records Please note, 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, § l0(a)(ii) (written response must “identify any public records or categories of public records sought that are within the possession, custody, or control of the agency”). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). Conclusion Whereas the Town has confirmed to Attorney Cooper that it does not possess additional records responsive to her request, the Town has satisfied its burden in responding to this request. I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kendra Cooper, Esq.