Linda & Steve Chiarizio v. Millis, Town of - Town Clerk (SPR 20230820)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2023 SPR23/0820 Lisa Jane Hardin, J.D. Town Clerk Town of Millis 900 Main Street Millis, MA 02054 Dear Ms. Hardin: I have received the petition of Linda and Steve Chiarizio, of Tangerini’s Spring Street Farm, appealing the response of the Town of Millis (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2023, Mrs. Chiarizio requested: “[c]orrespondences between Tangerini’s Farm (Laura & Charlie Tangerini) and the Building Department (plumbing, electrical, building inspectors, building commissioner), and [t]he Board of Health regarding Tangerini’s Farm or/and 139 Spring Street [in the Town]. Date range of January 1, 2000 to April 10, 2019.” On April 24th, Mrs. Chiarizio sent Ms. Hardin an email inquiring when requested documents would be provided. In an April 26th response, the Town asserted: “…the Town cannot currently search all old emails prior to 2019. The project of implementing a new archival system is not expected to be completed until early Fall. Once the new system is in place, Jim Donovan, IT Director, says he will be able to search the emails and provide a list of messages that meet your criteria. At that point, a decision would need to be made by the Town on the amount of time required to review and either redact or approve the emails for your records request. Depending on the number of emails and time required, there may be a charge for your request, but you would be informed of the cost before the work is undertaken and given the opportunity to downsize your request or cancel it. In the meantime, the Building Inspector, Mike Giampietro, says you may look through the relevant paper files in his Department concerning your property and make copies of what you want. You can arrange this with his assist, Jen Kiggen.” 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

Lisa Jane Hardin, J.D. SPR23/0820 Page 2 May 9, 2023 Also, the Town noted that Mrs. Chiarizio received responsive paper documents from the Board of Health. As a result of the Town’s April 26th response, Mrs. Chiarizio petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her April 26th petition, Mrs. Chiarizio informed this office, “[w]e were able to obtain copies of all the documents in our file at the [Town’s] Board of Health. As for Building Department, we were instructed to come and make any necessary copies ourselves. However, no department is able to provide us any emails that we requested. This is a time sensitive matter for us and the [T]own has told us that they don’t currently have access to archives and searching capabilities. Over the telephone, the Town Clerk mentioned they haven’t had this capacity since they changed their IT programming in 2019...” 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). See Office of the Sec’y of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law (2020); see also G. L. c. 66, § 1. The records access officer has a duty to maintain copies of public records and make the public records available in a location convenient to the general public for inspection and copying. Id.

Lisa Jane Hardin, J.D. SPR23/0820 Page 3 May 9, 2023 Please be aware, safeguards must be instituted by the Town to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. 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. In a May 8th telephone conversation with Town Administrator Michael Guzinski, an attorney in the Public Records Division was informed that the Town is taking steps to update the email archiving system so that it allows for searching. The Town should consult with the RMU to ensure the updates made to the email archiving system are consistent with the access and retention provisions of the Public Records Law. Conclusion The parties are encouraged to continue to communicate to assist the Town in providing the requested records in an efficient manner. If outstanding issues remain, Mrs. Chiarizio may file a further appeal. Sincerely, Manza Arthur Supervisor of Records cc: Linda Chiarizio, Tangerini’s Spring Street Farm