Dan Carroll v. Bedford, Town of - Town Clerk (SPR 20230944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2023 SPR23/0944 Bridget Rodrigue Town Clerk 10 Mudge Way Bedford, MA 01730 Dear Ms. Rodrigue: I have received the petition of Dan Carroll appealing the response of the Town of Bedford (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2023, Mr. Carroll requested: “…a copy of all text messages (actual typed messages) between Sarah Stanton and Chief David Grunes for the past 6 months on their Town issued cell phones.” On April 11th, the Town acknowledged Mr. Carroll’s request, asserting, “…[t]he Town has ten days to fulfill this request, unless additional time is required. [The Town] will be back in touch regarding this request within this ten day timeframe.” On April 12th, Mr. Carroll emailed the Town Clerk, stating, “…[t]o be more specific I am requesting this information covering the date range of November 1, 2022 through the end of day April 10th, 2023.” On April 24th, the Town provided Mr. Carroll with screenshots of the text messages. However, on April 28th, Mr. Carroll informed the Town Clerk that the screenshots are blurry, and as a result, unreadable. On May 1st, the Town provided Mr. Carroll with a transcript of the text messages, and informed Mr. Carroll that all available records have been provided. As a result of the Town’s May 1st response, Mr. Carroll petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his May 9th petition, Mr. Carroll asserts, “[i]t is my belief from reading the attached transcript that messages within the original texts strings were deleted prior to taking the screen shots. Furthermore, it is my belief that messages from January 2022 through February 2023 were 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

Bridget Rodrigue SPR23/0944 Page 2 May 17, 2023 ALL deleted from the cell phones of Sarah Stanton and David Grunes, as I did not receive one single text from those 14 months. My request is to receive all text messages from January [1] 2022 through April [10] 2023 between Sarah Stanton and David Grunes.” 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 in Existence; Records Management 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). In light of Mr. Carroll’s assertion that text messages may have been deleted, I find it is unclear if the Town may possess additional records responsive to his request. This office encourages Mr. Carroll and the Town to continue communicating to facilitate providing any remaining records. In addition, if the records were deleted, I find that the Town must demonstrate whether it followed proper records retention protocol. Please note, 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. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.

Bridget Rodrigue SPR23/0944 Page 3 May 17, 2023 Conclusion Accordingly, the Town is ordered to provide Mr. Carroll with a response to his request in a manner consistent with the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Dan Carroll