Keith Lyons v. Boxborough, Town of - Town Clerk (SPR 20232595)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 10, 2023 SPR23/2595 Rebecca J. Harris, Ph.D. Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Keith Lyons appealing the response of the Town of Boxborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 11, 2023, Mr. Lyons requested, “[a]ny/all email to/from [identified indivduals] via gmail admin search with Guideline of Quinn (or PCI) payments for degrees. Search can be 2018-present.” Response and Communications between the Parties On September 14, 2023, Dr. Harris provided a response to Mr. Lyons, including a log of emails that were found in the search for the responsive emails. In her September 14th response, Dr. Harris states: [A]s of yesterday emails have been migrated to gmail from outlook, making this kind of search a bit easier on my end. I have asked Rajon to follow up with our contact at Google because the emails available at this point only appear to go back to 2020. However, the capability exists to create a log of emails based on search criteria. There are a lot of duplicate emails in the log that I’ve created, which may be a result of the way I searched but I was trying to be thorough. I would recommend that you look through this log and note particular emails that you’re interested in and if it’s not too many, I should be able to go back and retrieve the emails. Keep in mind that I still need to make sure there is no personal information or other info that needs to be redacted under Public Records Law. Attached is a log of emails found when I used the filters to: / from: . . . with all content including . . . as search terms. 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

Rebecca J. Harris, Ph.D. SPR23/2595 Page 2 November 10, 2023 After reviewing the log of emails he received, on September 16th, Mr. Lyons modified the search parameters, informing Dr. Harris, “[a]dd . . . because he and I are IT and he has been involved in this transition. I’m not interested in the term payroll as part of the search even though I understand why you added it. Just Quinn or PCIPP. I narrowed down some of . . . that would be good. Please search again and provide a list using . . . and don’t use Payroll. This is way better than before and easier to pick and keep the work minimal. Awesome!” On September 18, 2023, after reviewing the email records received, Mr. Lyons emailed Dr. Harris, asserting, “unfortunately these are useless. . . . All correspondence between . . . and . . . [M]ay 2020-[D]ecember 2020 . . . . Just give me everything between those two between [M]ay and Dec. Thanks.” On September 19, 2023, Dr. Harris sent an email to Mr. Lyons, stating: . . . I’m not sure how you are reaching the conclusion that there are emails on a certain topic from a certain timeframe without already having those emails(?). I have run the searches you requested and found, in addition to the emails you already have, only the following (I think you may already have these too). . . As a result of the September 19th response from the Town, Mr. Lyons 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 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.

Rebecca J. Harris, Ph.D. SPR23/2595 Page 3 November 10, 2023 Current Appeal In his petition, Mr. Lyons indicates, “I am submitting an appeal/complaint on my request to receive an email in question because the Town Clerk [cannot] find said record and Select Board member . . . has seen said email and has been unresponsive to my requests for him to help. The [T]own recently migrated to Google/gmail and this email was seen by member . . . after the transition. I formally request that said email be provided without delay.” 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). Based on the Town’s response and Mr. Lyons’ assertion that the particular email in question exists, it is unclear whether the Town performed a diligent search, whether the email may be in the possession of a particular department in the Town, or whether the particular email existed at one time and has been deleted. The Town must clarify these issues. Conclusion Accordingly, the Town is ordered to provide Mr. Lyons with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Keith Lyons