Robert Marshall v. Bedford, Town of - Town Clerk (SPR 20232453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 30, 2023 SPR23/2453 Bridget Rodrigue Town Clerk Town of Bedford 10 Mudge Way Bedford, MA 01730 Dear Ms. Rodrigue: I have received the petition of Robert Marshall 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 August 29, 2023, Mr. Marshall requested: …all text messages between [two identified individuals] and all phone calls (records) between [the identified individuals] from July 1, 2023 up until August [28,] 2023. Also requested include all text messages and phone calls to and from [the identified individuals] that have occurred since he formally retired from his position of Fire Chief. I would believe that [an identified individual] would no longer have a [T]own issued phone, however I am requesting all text messages on [an identified individual’s] [T]own issued phone coming from and being sent to [an identified individual’s] personal phone number. On September 11, 2023, the Town provided Mr. Marshall with a response, stating, “[p]lease find attached four (4) screenshots of text messages between . . . . [An identified individual’s] work phone is set to delete text messages after 30 days. The Town did not find any other responsive records.” As a result of the Town’s September 11th response, Mr. Marshall 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 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 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 SPR23/2453 Page 2 October 30, 2023 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. Current Appeal In his October 16th petition, Mr. Marshall asserts, “[the Town’s] response was that they only keep phone records for 30 days, then they are deleted. I am troubled by that response…” In addition, Mr. Marshall asserts, “I am filing an official complaint regarding the failure to produce the records I have requested and also the [Town] deleting official record.” Records in Existence 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 accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In Mr. Marshall’s August 29th request, he requested “…all phone calls (records) from [two identified individuals] from July 1, 2023 up until August 28, 2023.” Based on the Town’s response, it is unclear if the Town possesses records responsive to this request. The Town must clarify this matter. Records Management Mr. Marshall’s appeal raises questions regarding the records management of public records in the possession of the Town. Where the text messages may have existed at some point in time, and the Town has responded that the text messages no longer exist, and that the “work phone is set to delete text messages after 30 days[,]” the Town must address whether it complied with the Municipal Records Retention Schedule (Schedule) in destroying the text messages. See G. L. c. 66, § 10(a)(i).

Bridget Rodrigue SPR23/2453 Page 3 October 30, 2023 Based upon an October 26, 2023 telephone conversation between a senior attorney in the Public Records Division and the Town’s Legal Counsel, Nina L. Pickering-Cook, Esq., of Anderson Kreiger, LLP, it is my understanding that the Town intends on providing a further response to Mr. Marshall regarding the issues raised in his public records appeal. Conclusion Accordingly, the Town is ordered to provide Mr. Marshall with said 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: Robert Marshall Nina L. Pickering-Cook, Esq.