Michael J. Maglothin v. Harvard, Town of - Town Clerk (SPR 20212377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2021 SPR21/2377 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. Previous Appeal and Petition This request was the subject of a previous appeal and petition. See SPR21/2044 Supervisor of Records Determination (August 27, 2021); SPR21/2387 Supervisor of Records Determination (September 20, 2021). In my August 27th determination, I encouraged both parties to communicate further in order to enable the Town to provide records more efficiently and affordably. In my September 20th determination, I found that the Town could not be granted permission to charge more than $25 per hour in its fee estimate. 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 SPR21/2377 Page 2 September 24, 2021 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 agency or municipality 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. Att’y 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. Current Appeal In his appeal petition, Mr. Maglothin contends that he has “not yet received a response to [his] September 1st request for clarification of the email exchange system in use by the Town (e.g. not Outlook Express).” He further states that “[t]he Town has refused multiple offers to meet with [him] and collectively discuss a suitable approach to meet the request.” The Town’s September 1st and September 16th Responses In its September 1, 2021 response, the Town suggested the following: As to item 3 of [the] request, it would be helpful to identify the recipient(s) by name and title and the subject(s) of the messages. As to items 4 through 9 of the request, it would be helpful if [Mr. Smith] could identify the recipient(s) by name and title and the subject(s) of the messages. In addition, [he] listed the senders as “All Town Employees”. Since the Town has over 460 employees, many without email capability, narrowing this request is critical to the Town’s ability to provide responsive records to this request. In its September 16th response, the Town states that it “suggested reasonable modifications of the scope of [the] request in order to facilitate the Town’s production of the responsive records.” The Town goes on to state Mr. Maglothin “did not make any modifications of the scope of the request. Instead, [he] offered instructions as to how to search for e-mail communications that [he is] seeking. Without the needed modifications to the scope of [the] request, the Town is unable to produce records in response to it.”

Marlene Kenney SPR21/2377 Page 3 September 24, 2021 Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, 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.” In this case, although Mr. Maglothin has declined to narrow the scope of his request, he has provided specific descriptions for the categories of emails he is seeking, including a date range and the categories of senders and recipients. While his request may result in a large volume of responsive records, he has provided sufficient particularity required to identify the documents he is seeking. To the extent possible, the Town must provide responsive records on a rolling basis. This office encourages Mr. Maglothin and the Town to continue communicating to facilitate providing records more efficiently and affordably. See 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 the records sought more efficiently and affordably). No Duty to Answer Questions With regard to Mr. Maglothin’s question concerning the Town’s email exchange system, please be advised that under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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.

Marlene Kenney SPR21/2377 Page 4 September 24, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael J. Maglothin