Casey G. Fleming v. Oxford, Town of - Town Clerk (SPR 20213244)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 27, 2021 SPR21/3244 Michelle A. Jenkins Town Clerk Town of Oxford 325 Main Street Oxford, MA 01540 Dear Ms. Jenkins: I have received the petition of Casey G. Fleming appealing the response of the Town of Oxford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2021, Mr. Fleming requested, “the video of the board of selectman meeting that took place today September 21, 2021.” On October 6, 2021, the Town provided a response to Mr. Fleming. Unsatisfied with the Town’s response, Mr. Fleming petitioned this office and this appeal, SPR21/3244, 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. 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. 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

Michelle A. Jenkins SPR21/3244 Page 2 December 27, 2021 The Town’s October 6th Response On October 6, 2021, the Town stated, “the Town’s duty to respond to records requests extends only to records that are in existence and in the custody of the Town, and the Town is under no obligation to create records in response to your request. Furthermore, the Town is not required to answer questions in response to a public records request.” The Town explained it “reviewed [Mr. Fleming’s] request. There are no documents in existence or in the custody of the Town which are responsive to [Mr. Fleming’s] request.” In his appeal to this office, Mr. Fleming stated he “personally witnessed the Oxford Board of Selectmen meeting being recorded using the town’s video equipment. The recording equipment in operation was briefly captured by an independently made video and is shown in attachment C. The video was a part of the official record of an open meeting as well as a public record.” Mr. Fleming also claimed the “assistant town manager admits in her online statement that the town is in possession of the video file that I requested, but appears to claim that the file is corrupted. The video file remains a public record responsive to my request even if the town has been unsuccessful in getting it to play as a video.” Records in existence 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). If the Town does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In light of the issues raised by Mr. Fleming regarding the existence of additional responsive records, I find it is unclear whether further responsive records exist. The Town must clarify this matter. This office continues to encourage Mr. Fleming and the Town to communicate 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 records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Fleming 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.

Michelle A. Jenkins SPR21/3244 Page 3 December 27, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Casey G. Fleming