Jon Sylbert v. Monterey, Town of - Town Clerk (SPR 20220535)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2022 SPR22/0535 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 February 12, 2022, Mr. Sylbert requested “all communications between any member of town government and [a named individual] made on February 21, 2022, between 8am and 11:50am.” The Town responded on March 3, 2022, providing a responsive record. 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. 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 SPR22/0535 Page 2 March 16, 2022 Current Appeal In his appeal petition, Mr. Sylbert contends that the Town “did not provide [him] with the record in a ‘searchable’ format.” Additionally, he notes that “the record in question is an email created on the town email server; the email is searchable; if the email is saved in pdf format instead of scanned, it remains in a searchable format. It can also be forwarded to [him] as an email, which is searchable.” The Town’s Response In its March 3, 2022 response, the Town provided Mr. Sylbert with a copy of the responsive record. In an email to this office and Mr. Sylbert on March 16, 2022, the Town states “that as required in [950 C.M.R.] section 32.04(5d), the records were provided in the format most feasible to the RAO fulfilling the task.” Preferred Format A records access officer shall, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Please be advised, the Public Records Access Regulations also state “the records access officer must provide electronic records in native form when possible.” 950 C.M.R. 32.07 (1)(d). Based on the forgoing, it is unclear if it is feasible for the Town to provide the requested record either in the native email format, or some other searchable machine-readable format. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Sylbert 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jon Sylbert