Casey G. Fleming v. Oxford, Town of - Town Clerk (SPR 20220813)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2022 SPR22/0813 Michelle A. Jenkins Town Clerk Town of Oxford 325 Main Street Oxford, MA 01540 Dear Ms. Jenkins: I have received the petition of Casey G. Fleming appealing the response of the Town of Oxford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2021, Mr. Fleming requested, “the video of the board of selectman meeting that took place today September 21, 2021.” Previous appeal This request was the subject of a previous appeal. See SPR22/0813 Determination of the Supervisor of Records (December 27, 2021). In my December 27th determination, I ordered the Town to clarify whether it possesses additional responsive records. The Town provided a response on January 6, 2022. Unsatisfied with the Town’s response, Mr. Fleming petitioned this office and this appeal, SPR22/0813, 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. 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 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

Michelle A. Jenkins SPR22/0813 Page 2 April 15, 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. 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 January 6th response In its January 6, 2022 response, the Town states that it “. . . reiterates its previous response to your request that it has no record responsive to your request for a video of the September 21, 2021 Board of Selectmen meeting. . . . While you may have observed Town equipment in use at that meeting, no video of the meeting was in fact created due to an inadvertent error in the operation of the Town equipment, hence the Town’s response in this regard. Instead, a corrupted file was discovered on the disc used in the Town’s equipment that evening.” The Town explains, “[i]n your appeal, you appear to be seeking a copy of the corrupted file contained on the disc used at the September 21, 2021 Board of Selectmen meeting. As noted above, no recording was in fact captured as the operators were inexperienced with the equipment and failed to properly save the video images. Since the resulted corrupted file contained no usable or retrievable material, it was deleted and so no longer exists. The Town’s action in this regard was taken with the understanding that there was no record to be preserved due to there being no retrievable information in the corrupted file. Town officials ‘are entitled to a presumption that they carry out their work with regularity, legality, and in good faith absent affirmative evidence that they engaged in a pattern of willful or deliberate indifference to constitutional rights.’ LaPointe v. License Board of Worcester, 389 Mass. 454, 455 (1983). The Town, in deleting this file, acted in good faith and pursuant to Town practice to overwrite or reuse discs as necessary to preserve Town resources. In conclusion, the Town confirms that the subject corrupted file, which contained no retrievable information, was deleted in good faith and so no longer exists. Therefore, the Town has no record responsive to your request.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extend 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).

Michelle A. Jenkins SPR22/0813 Page 3 April 15, 2022 Conclusion Where the Town has confirmed that it does not possess records as requested, and has no duty to create records responsive to the request, I will consider this administrative appeal closed. If Mr. Fleming 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Casey Fleming