Mitchell I. Greenwald, Esq. v. Lenox, Town of - Town Clerk (SPR 20221352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 23, 2022 SPR22/1352 Kerry L. Sullivan Town Clerk Town of Lenox 6 Walker Street Lenox, MA 01240 Dear Ms. Sullivan: I have received the petition of Attorney Mitchell I. Greenwald appealing the response of the Town of Lenox (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 29, 2022, Attorney Greenwald requested “a copy of the video surveillance recording for the period on March 22, 2022, between 8 and 11 am, at the main lobby entrance to the Morris School.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1006 Determination of the Supervisor of Records (May 10, 2022). In my May 10th determination, I ordered the Town to clarify how the responsive video constitutes a student record under Exemption (a) of the Public Records Law, and G. L. c. 71, § 34D. Subsequently, the Town responded on May 23, 2022, stating, among other things, that the responsive record has been deleted. Unsatisfied with the Town’s response, Attorney Greenwald 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. 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

Kerry L. Sullivan SPR22/1352 Page 2 June 23, 2022 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. Current Appeal In his appeal petition, “it isn’t clear when the record in question was destroyed, but the records request was made on March 29, seven days after the record was created, so it is obvious that at the time of ‘destruction’, the Town knew that it was subject to a public records request.” The Town’s May 23rd Response In its May 23, 2022 response, the Town states the following: The [School] District’s surveillance video is only retained for 40 days before it is deleted and overwritten. This practice is consistent with the requirements for retention of surveillance videos by public entities in Massachusetts. The requested video has been deleted in accordance with this normal process. The Town is advised that, as noted in Attorney Greenwald’s appeal petition, the Electronic Records Management Guidelines promulgated by this office provide in pertinent part: No electronic record should be disposed of if it is subject to a public record request or likely to be subject to a dispute, audit, investigation, or litigation, or subject to other legal retention requirements, regardless of the public status of the record. Electronic Records Management Guidelines § 9(6) (https://www.sec.state.ma.us/arc/arcpdf/Electronic_Records_Guidelines.pdf). Records Management Where the Town appears to have deleted a record while it was the subject of a public records request, the Town’s May 23rd response raises particularly grave concerns regarding records management practices by the Town. The Town must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. See G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Town may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request.

Kerry L. Sullivan SPR22/1352 Page 3 June 23, 2022 Conclusion Given that the requested record no longer exists, and this office has no authority to compel the Town to create records, I will consider this administrative appeal closed. If Attorney Greenwald 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); see also G. L. c. 66, § 10A(d)(2)–(4) (permitting award of reasonable attorney fees and punitive damages). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mitchell I. Greenwald, Esq.