Edward P. Sinni, Jr. v. Concord Natural Resources Commission (SPR 20201280)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2020 SPR20/1280 Delia Kaye Town of Concord Natural Resources Division 141 Keyes Road Concord, MA 01742 Dear Ms. Kaye: I have received the petition of Edward Sinni appealing the response of the Town of Concord Natural Resources Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sinni requested: “…the email address of the Natural Resources Commission [Commission], and the email addresses of the individual [Commission] members.” Previous Appeal This request was the subject of a previous appeal. See SPR20/1006 Determination of the Supervisor of Records (July 6, 2020). In my July 6th determination, I found the Division must clarify whether the individual members of the Commission are using the requested email addresses to conduct the business of the Commission. The Division was ordered to provide Mr. Sinni with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. The Division provided a response on July 20, 2020. Unsatisfied with the Department’s response, Mr. Sinni petitioned this office, and SPR20/1280 was opened as a result. The Division’s July 20th Response In its July 20th response, the Division states “[i]n your letter you requested that the Concord Natural Resources Division/Natural Resources Commission must ‘clarify whether the individual members of the Commission are using their personal email addresses to conduct the business of the Commission.’ The answer to that question is yes, the Commission members have not been assigned Town email addresses.” 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

Delia Kaye SPR20/1280 Page 2 August 11, 2020 The Division contends “[a] request for ‘email addresses’ is not a request for ‘public records’, i.e., ‘books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by a governmental entity unless such materials or data fall within one or more of the exemptions found within G. L. c. 4, § 7(26) or other legally applicable privileges.’” The Division further indicates “[t]he Natural Resources Director has volunteered to forward any correspondence he would like to the Commissioners herself. We believe this approach balances Mr. Sinni’s right to contact town officials with volunteer board and commission members’ privacy in their email addresses as described on Page 19 of the Supervisor’s most recently updated guide to the Public Records Law.” Please be advised “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). Where the Division has confirmed individual members of the Commission are using the requested email addresses to conduct business of the Commission, it is unclear how these responsive email addresses are not public records under the statutory definition. Burden of specificity in responding; claiming exemptions The Division denied Mr. Sinni’s request for email addresses of Commission members due to privacy without claiming any exemption(s) in the Public Records Law that would support the withholding of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, ------------------------------- 419 Mass. at 511. The Division did not meet its burden of demonstrating how the responsive email addresses of individual Commission members are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Therefore, the Division has not met its burden in withholding the responsive records. Conclusion Accordingly, the Division is ordered to provide Mr. Sinni with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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.

Delia Kaye SPR20/1280 Page 3 August 11, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Edward Sinni