Jon Sylbert v. Monterey, Town of (SPR 20213294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2022 SPR21/3294 Melissa Noe Town Administrator Town of Monterey 435 Main Road Monterey, MA 01245 Dear Ms. Noe: I have received the petition of Jon Sylbert appealing the response of the Town of Monterey (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 16, 2021, Mr. Sylbert requested, “…the tape recording of the 12/14/21 Finance Committee meeting.” On December 20, 2021, the Town responded. Unsatisfied with the Town’s response, Mr. Sylbert petitioned this office and this appeal, SPR21/3294, 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Melissa Noe SPR21/3294 Page 2 January 3, 2022 The Town’s December 20th response In its December 20th response, the Town stated, “[t]he meeting on 12/14 was cancelled due to lack of a quorum and therefore was not recorded as the meeting did not occur.” Current Appeal In his appeal, Mr. Sylbert asserts, “[t]he meeting was opened and recorded; therefore, it did occur. A ‘lack of a quorum’ does not mean the meeting wasn’t recorded or that it did not occur. The meeting was ended, not ‘canceled,’ during the meeting time, by the Chair of the committee, and this was recorded. The meeting wasn’t ‘canceled’ until 7:34am the next day, 12/15/21, as is shown on the Monterey town website. …” Records in Possession, Custody, or Control Please be advised that 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). Additionally, 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). However, 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). Based on a conversation between a Public Records Division staff attorney and a Town representative, it is my understanding that no recording occurred on 12/14. Consequently, no responsive records exist. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Sylbert is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10(A)(c). Sincerely, - - , - , . · , ' _ - _ . ' ··. ~ Rebecca S. Murray Supervisor of Records cc: Jon Sylbert