Gerard F. Mackin, Jr. v. Weymouth, Town of - Town Clerk (SPR 20221895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 30, 2022 SPR22/1895 Kathleen Deree Town Clerk Town of Weymouth 75 Middle Street Weymouth, MA 02189 Dear Ms. Deree, I have received the petition of Gerard Mackin appealing the response of the Town of Weymouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 29, 2022, Mr. Mackin requested all documents referring to the capacity of the Town’s email service [and] [c]ommunications in 2022 between and among Town employees or contractors regarding the capacity of the email.” Previous appeal This request was the subject of a previous appeal. See SPR22/1872 Determination of the Supervisor of Records (August 16, 2022). The Town responded on August 15, 2022. Unsatisfied with the response, Mr. Mackin petitioned this office and this appeal, SPR22/1895, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld 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

Kathleen Deree SPR22/1895 Page 2 August 30, 2022 or redacted portion of the responsive record. The Town’s August 15th response In its August 15, 2022 response, the Town stated, “[t]his is not a searchable request in email and there are no internal documents pertaining to the request, as such there is nothing to return.” The Town also asserted that the “… request must reasonably describe the records sought. See G. L. c. 66, § 10(a) (i) and the recent case of Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019).” Current appeal In his appeal, Mr. Mackin states, “I have sufficiently described the documents which I am seeking (2) The response by [identified person] does not deny there are documents since he says my request is not searchable in email form. That suggests that the information/documents I seek may be available in a different form which I am entitled to obtain and (3) my second part of the request was for communications and the response is limited to ‘internal documents’ implying there are other external documents.” Based on the Town’s response, it is unclear whether any responsive records exist in the form of communications. The duty to comply with requests for records extends 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). I encourage Mr. Mackin and the Town to communicate in order to facilitate producing records efficiently and affordably. Mr. Mackin may wish to clarify the specific records he seeks to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Mackin with a response to the 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 this response to this office at pre@sec.state.ma.us.

Kathleen Deree SPR22/1895 Page 3 August 30, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Gerard Mackin Marsha Geronaitis