Jacquelyn Wehtje v. Fitchburg, City of - Agricultural Commission (SPR 20231563)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2023 SPR23/1563 Jen Barlow Secretary City of Fitchburg Agricultural Commission 718 Main Street Fitchburg, MA 01420 Dear Ms. Barlow: I have received the petition of Jacquelyn Wehtje appealing the response of the Fitchburg Agricultural Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 13, 2023, Ms. Wehtje requested “…all emails to and from the fitchburgagcomm@gmail.com address.” The City’s and Commission’s Responses In a June 14, 2023 email response from the City of Fitchburg, City Council President, Anthony Zarrella, informed Ms. Wehtje, “… [t]here is no law that says that a municipal official, board, or commission cannot use a non-government email address, and if it were intended to be secret, I suspect the account would be named something less transparent than [fitchburgagcomm@gmail.com]. You are, of course, entitled to whatever public records exist that are responsible to your request…” In a June 26, 2023 email response from Jen Barlow, Secretary of the Commission, Ms. Wehtje was informed: I am confirming receipt of this request, and to request an extension of an additional 25 business days to compile the requested information. The additional time is needed to: compile the emails in a form that they can be shared; to review each email so that personal information can be redacted; and identify emails protected under Executive Session rules, to be held until such time that the activities being discussed in Executive Session are completed and minutes are made public. 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

Jen Barlow SPR23/1563 Page 2 July 14, 2023 I respectfully request your patience as I do this organizational work; as a volunteer, who is also fully employed outside my work with [the Commission], I am doing my best to dedicate time to handle these request while also fulfilling my other responsibilities as Commission [S]ecretary. I also expect that this organizational work will have the added benefit of making it easier to respond to these requests in the future. Please note that according to the City Clerk, all volunteer Committees and Commissions must use their own email addresses to reply [to] emails related to their work. For clarity, the officers of the [Commission] decided to create a shared email address for this purpose. In a July 3, 2023 email, Ms. Barlow informed Ms. Wehtje, “…I will do my best to fulfill your request in as timely manner [as] is possible. Also on July 3rd, the City’s IT Manager, Trevor Bonilla asserted, “I apologize for the delayed response but it has been a busy last week or two…” As a result of not receiving any of the emails as of July 6th, Ms. Wehtje petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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. The Commission’s July 10, 2023 Response and Production of the Email Records In a July 10th email from the Commission, Ms. Wehtje was provided with a response and production of the requested email records.

Jen Barlow SPR23/1563 Page 3 July 14, 2023 Conclusion Accordingly, where the Commission provided Ms. Wehtje with the responsive emails requested on June 13th, I will now consider this administrative appeal closed. Ms. Wehtje may appeal the substantive nature of the Commission’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje