Jon Sylbert v. Monterey, Town of (SPR 20220805)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2022 SPR22/0805 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.” Previous Appeal This request was the subject of a previous appeal. See SPR22/0535 Supervisor of Records Determination (March 16, 2022). Subsequently, the Town responded on March 17, 2022. Unsatisfied with the Town’s response, Mr. Sylbert appealed, and this case 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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 SPR22/0805 Page 2 April 14, 2022 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 Response In its March 3, 2022 response, the Town provides Mr. Sylbert with a single-page responsive record. In its March 17, 2022 response, a representative for the Town states that she is “unable to provide the requested record in searchable format as the record was provided to [her] in pdf format.” Current Appeal In his appeal petition, Mr. Sylbert contends that: If [the RAO] had requested that the entity or individual in possession of the records provide the records in a searchable format, e.g., by forwarding the emails or by saving the emails through the print dialog box as a searchable pdf, she would already have the records in a searchable format. In his previous appeal petition, Mr. Sylbert cites G. L. c. 66, § 6A. See G. L. c. 66, § 6A (“The records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format”). Conclusion Please note that, 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. See 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. Accordingly, I will consider this administrative appeal closed. 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, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jon Sylbert