Andrew McIsaac v. Richmond, Town of - Office of the Town Clerk (SPR 20232032)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2023 SPR23/2032 Angela Garrity Town Accountant/Town Clerk/RAO Town of Richmond 1529 State Road Richmond, MA 01254 Dear Ms. Garrity: I have received the petition of Andrew D. McIsaac appealing the response of the Town of Richmond (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 27, 2023, Mr. McIsaac requested “all incoming messages received by and outgoing messages generated by [an identified email address] [the] e-mail address is listed on the following [Town] website . . . between August 19, 2023 and August 27, 2023.” In an August 28, 2023 email response, Ms. Garrity inquired, “[i]n regard to your public records request are you referring to any communications between the school and [the identified email address]? There are no records of outgoing and incoming emails from the [identified email address] to the Town Clerk.” In an August 28th email to Ms. Garrity, Mr. McIsaac reiterated his request, and then informed Ms. Garrity, “[s]pecifically, I’m seeking any and all messages subject to public inspection received by and generated by [an identified email address], which is listed on a [Town] website, for the aforementioned dates. I assume the e-mail account is being used to conduct government business.” Ms. Garrity responded again stating, “[h]i I have checked with all inspection depts. and there are no incoming or outgoing messages on file.” As a result of the Town’s responses, Mr. McIsaac petitioned the Supervisor of Records and this appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Angela Garrity SPR23/2032 Page 2 September 11, 2023 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). Current appeal In his petition, Mr. McIsaac asserts, “I am writing to appeal the responses of the Records Access Officer (RAO) of the [Town] to my public records request submitted on August 27, 2023. I don’t quite understand the response. Furthermore, the requested records are supposed to be maintained on file in accordance with the Municipal Records Retention Schedule.” Subsequent to the opening of this appeal, in an August 29, 2023 email, Town Clerk Garrity informed this office, “[t]he [Town] has no correspondences with the email address in question to be able to provide in response to this request…” In addition, Ms. Garrity informed this office, “[t]he School Committee member whose email address is [in question], reached out to me by phone after she was cc’d on the first public records request. She informed me that the email address listed on the website is her personal email and not the email address she uses for School matters. We were not aware of this error until this public records request was pointed out to us.” In a telephone conversation on September 11th, Ms. Garrity confirmed to an attorney on my staff, that the Town has no records regarding the email address in question. Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Conclusion Whereas the Town does not possess any records responsive to Mr. McIsaac’s request, I will now consider this administrative appeal closed. If Mr. McIsaac is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b).

Angela Garrity SPR23/2032 Page 3 September 11, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Andrew D. McIsaac