Michael J. Maglothin v. Harvard, Town of - Town Clerk (SPR 20212044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2021 SPR21/2044 Marlene Kenney Town Clerk Town of Harvard 13 Ayer Road Harvard, MA 01451 Dear Ms. Kenney: I have received the petition of Michael J. Maglothin appealing the response of the Town of Harvard (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2021, Mr. Maglothin requested “email records in Outlook Data File .pst format of the following transmissions dated from July 21, 2020 to present” and provided the following nine categories: 1. From: [a named address]@harvard.ma.us To: [a named address]@harvard.ma.us 2. From [a named address]@harvard.ma.us To: [a named address]@harvard.ma.us 3. From: [a named address]@harvard.ma.us To: any external recipient 4. All town employees To: [a named address]@gmail.com 5. All town employees To: [a named address]@gmail.com 6. All town employees To: [a named address]@barrettsothebysrealty.com 7. All town employees To: [a named address]@hazelre.com 8. All town employees To: [a named address]@lawofficeoferinmcbee.com 9. All town employees To: richardcabeluslaw.com The Town responded on August 3, 2021, indicating that the “request is overly broad and vague.” Mr. Maglothin and the Town continued communicating concerning his request, and on August 11, 2021 the Town reiterated that the “requests are overly broad and vague.” Unsatisfied with the Town’s responses, Mr. Maglothin appealed, and this case 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 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

Marlene Kenney SPR21/2044 Page 2 August 27, 2021 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Reasonable Description of Records Sought In its August 3, 2021 response, the Town states that “[t]he request is overly broad and vague in that it (1) does not identify the subjects of the records; (2) as to [the] third request, it does not identify the recipient(s); and, (3) as to [the] fourth through ninth requests, they do not identify the sender or person who created the records.” A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla v. Dept of Revenue, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” As to items 1 and 2 of the request, Mr. Maglothin has provided the specific senders and recipients as well as a date range for the emails he seeks. Accordingly, it is unclear why the Town is not able to provide responsive records to these parts of the request. The Town must clarify this. Modification of the Scope of Request As to items 3 through 9 of the request, please note that 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). In this case, the Town has expressed a willingness to work with Mr. Maglothin in order to narrow

Marlene Kenney SPR21/2044 Page 3 August 27, 2021 the scope of his request in order to provide the information he desires. In light of the Town’s response, this office encourages both parties to communicate further to enable the Town to provide the requested records more efficiently and affordably. G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Mr. Maglothin may wish to narrow the parameters, include applicable search terms or factors to enable the search to be processed. The request must reasonably describe the records sought. G. L. c. 66, § l0(a)(i). Conclusion Accordingly, the Town is ordered to provide Mr. Maglothin with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael J. Maglothin