Christine Nordhaus v. Littleton, Town of - Office of the Town Clerk (SPR 20210470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2021 SPR21/0470 Diane Crory Town Clerk Town of Littleton 37 Shattuck St, Room 207 Littleton, MA 01460 Dear Ms. Crory: I have received the petition of Christine Nordhaus appealing the response of the Town of Littleton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 8, 2021, Ms. Nordhaus requested “[a]ny and all messages made via SMS text messaging, chat applications, social media messaging, and/or any other means of electronic communication (excluding email), either originating from or received by [an identified individual] between the dates of January 1, 2016 through the present, between [an identified individual] and any person serving the Town during the above period as an elected or appointed official, or an employee of the Town of Littleton.” The Town responded on February 23, 2021, which included responsive records. Unsatisfied with the response, Ms. Nordhaus petitioned this office and this appeal SPR21/0470 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. 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

Diane Crory SPR21/0470 Page 2 March 8, 2021 The Town’s February 23rd response In its February 23rd response, the Town states “[p]lease find attached the text messages responsive to your amended public records request of February 5, 2021.” In her current appeal, Ms. Nordhaus states, “I received a response…along with 7 image files...My husband is a town official and listed as part of the request. He has received over 100 (one hundred) text messages from [an identified individual]. [The Town] did not produce those records so it is reasonable to expect that she omitted hundreds -perhaps thousands - of others.” In light of the appeal, it is unclear if the Town possesses additional records responsive to the request. The Town must clarify this matter. 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, § 10(a)(ii). Conclusion Accordingly, the Town is ordered to provide Ms. Nordhaus with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Christine Nordhaus