Jon Sylbert v. Monterey, Town of (SPR 20220363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 28, 2022 SPR22/0363 Melissa Noe Town Administrator Town of Monterey 435 Main Road P.O. Box 308 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 13, 2021, Mr. Sylbert requested, “[a]ll communications—including texts and emails—between [named individuals] … since October 31, 2021.” Prior appeals The requested records were the subject of previous appeals. See SPR21/3364 Determination of the Supervisor (January 11, 2022). In my January 11th determination, I learned that the Town responded to Mr. Sylbert’s fee estimate appeal with a response dated January 3, 2022. See SPR22/0091 Determination of the Supervisor (January 28, 2022). The Town further responded on February 14, 2022. Unsatisfied with the response, Mr. Sylbert petitioned this office and this appeal, SPR22/0363, 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 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 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 February 28, 2022 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. The Town’s February 14th Response In its February 14, 2022 response, the Town advised, “Mr. Sylbert has not reasonably described a public records request.” Current appeal In his appeal, Mr. Sylbert asserts, “I write to appeal the February 14, 2022 response of the Records Access Officer (RAO) to my appeal of January 13, 2022, SPR22/0091 for the following reasons: The RAO’s February 14, 2022 response to my appeal of January 13, 2022 begins as follows: ‘The reason for the appeal is unclear as per 950 C.M.R 32.08(1). Mr. Sylbert has not reasonably described a public records request.’” Mr. Sylbert further states, “… the nature of my ‘objections’ in my appeal of January 13, 2022 are perfectly clear.” Additionally, Mr. Sylbert inquires, “… why did Ms. Miller send her email to your office—who prompted her?—and why did Ms. Noe falsely accuse me of ‘improper use of [my] title as a finance committee member when sending these requests?’ Second, Ms. Noe’s claims that ‘it has always been Monterey’s policy to charge fees for public records requests that were not a simple 5-10 minute request.’ This is false.” Mr. Sylbert concludes by stating, “I maintain that Ms. Noe has not applied the discretionary option to charge a fee consistently, and, in fact, has not applied it when it suited her.” Conclusion In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Given that no violation of G. L. c. 66, § 10 has been asserted by Mr. Sylbert in his appeal petition, I am unable to issue a determination at this time. If Mr. Sylbert is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § l0A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jon Sylbert