Dawn Padovani v. Carver, Town of - Town Clerk (SPR 20231901)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2023 SPR23/1901 Michelle Sheehan Records Access Officer Town of Carver 108 Main Street Carver, MA 02330 Dear Ms. Sheehan: I have received the petition of Dawn Padovani appealing the response of the Town of Carver (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2023, Ms. Padovani requested “…a post put out by the cook of the Carver Council on Aging ... on the Carver Council on Aging social media Facebook page on August 2, 2023.” The Town responded on August 10, 2023. Unsatisfied with the Town’s response, Ms. Padovani petitioned this office and this appeal, SPR23/1901, 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 or redacted portion of the responsive record. 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 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

Michelle Sheehan SPR23/1901 Page 2 August 29, 2023 custodian must provide the responsive records. The Town’s August 10th response In its August 10, 2023 response, the Town stated that “…the Town has conducted a diligent search of its records and does not have the record requested below.” Current appeal In her appeal, Ms. Padovani states the following: On August 2nd, the Cook and Site Manager for the Carver Council on Aging ... posted a 2017 memory on their website, which pictured some of the attendees, and with a hurtful and derogatory attack on them and then deleted it, but not before it was seen by others. It is my understanding that the social media and FOIA laws across the U.S. outline social media as a government record that such agencies must retain for the public in every state. Therefore agencies must treat the activity of government related social media accounts as public records. Facebook keeps posts for 30 days before permanently deleting them, so the town still should have access to them. Records Management 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 Authority 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. 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). Whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. 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. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. The duty to comply with requests for records extends to those records that exist and are in

Michelle Sheehan SPR23/1901 Page 3 August 29, 2023 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 the issues raised in Ms. Padovani’s appeal, the Town must explain whether responsive records existed and were destroyed. See G. L. c. 66, § 10(a)(ii), (b)(ii). Further, the Town must explain in writing whether it complied with the Public Records Law and the Municipal Records Retention Schedule (Schedule) if it destroyed the records. See G. L. c. 66, § 10(a)(i). Conclusion Accordingly, the Town is ordered to provide Ms. Padovani with a response to the request, in a manner consistent with this order, 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 this response to this office at pre@sec.state.ma.us. Ms. Padovani may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Dawn Padovani