Mira Belenkiy v. Wellesley, Town of - Town Clerk (SPR 20213302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2022 SPR21/3302 K. C. Kato Town Clerk Public Records Officer Town of Wellesley 525 Washington Street Wellesley, MA 02482 Dear Ms. Kato: I have received the petition of Mira Belenkiy appealing the response of the Town of Wellesley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2021, Ms. Belenkiy requested the following: [1] All emails between [a named individual] and emails ending in mahb.org and\or massteacher.org and\or masscosh.org. [2] All emails between [a named individual] and the following individuals . . . [3] All emails between [a named individual] the mailing lists MassCHE- discuss@googlegroups.com and\or MassCHEannounce@ googlegroups.com and\or any other MassCHE mailing lists. When searching for these records, use the time frame May 25, 2021 to Sept 1, 2021. Please include emails where [a named individual] is on the to/from/cc/ bcc line or was forwarded the email from one the addresses by a 3rd party. The Town provided responses on December 7, 2021 and December 20, 2021, claiming it does not possess responsive records. Unsatisfied with the Town’s responses, Ms. Belenkiy petitioned this office and this appeal, SPR21/3302, 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). 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

K. C. Kato SPR21/3302 Page 2 January 3, 2022 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. The Town’s December 7th and December 20th responses In its December 7, 2021 response, the Town states that emails from the identified individual “. . . in her role as a Wellesley Elected Office on the Board of Health, for which she uses the Town email address, ...@wellesleyma.gov, there are no responsive records. While she may be the President of the MAHB, that is as a private individual and not in her capacity as an elected official. The MAHB is not a public entity and therefore the Public Records laws do not apply to her work as a MAHB board member.” In its December 20, 2021 response, the Town asserts “[t]he correspondences to and from [the named individual] in her role as the President of the MAHB are not in the care, custody or control of the Town of Wellesley. Therefore, there are no responsive records.” In her appeal petition, Ms. Belenkiy states the following: At issue are emails she sent in her capacity as the President of the MAHB. The MAHB is not a professional association of individuals - it is an association of government entities. (1) According to MAHB bylaws (https://www.mahb.org/governance-and- bylaws/), only Regular and Honorary Members may serve as President, where Regular Membership means being a member of a Member Board as established under MGL Ch. 111, Sec. 26. (2) The Town of Wellesley pays for the Wellesley Board of Health as a government entity to be a Member Board. (3) [The named individual] became a Regular Member not as an individual, but as part of the Town of Wellesley Board of Health. All of [the name individual’s] emails corresponding to the MAHB are public records, as they are part of her work for the Town of Wellesley. . . . Based on the Town’s response, in conjunction with Ms. Belenkiy’s claims, it is unclear whether the named individual serves as a member of the MAHB in her official capacity as an elected member of the Wellesley Board of Health. If so, it is unclear why the Town cannot retrieve the responsive records. Please note that public records must be maintained and kept in a

K. C. Kato SPR21/3302 Page 3 January 3, 2022 manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. - - - - - 281, 289-90 (1979). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Belenkiy 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: Mira Belenkiy