Heather Hunt v. Barnstable, Town of - Office of Town Clerk (SPR 20232612)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 10, 2023 SPR23/2612 Karen L. Nober, Esq. Town Attorney Town of Barnstable 367 Main Street Hyannis, MA 02601 Dear Attorney Nober: I have received the petition of Heather Hunt appealing the response of the Town of Barnstable (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 24, 2023, Ms. Hunt requested all phone records and text messages between two identified individuals from early 2023 to July 22, 2023. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2265 Determination of the Supervisor of Records (October 6, 2023). In my October 6th determination I found that the Town intended on providing a further response to Ms. Hunt and closed the appeal. On October 24, 2023 the Town responded and indicated that all responsive records excluding text messages had been provided. The Town further explained that all responsive text messages were deleted prior to the Public Records Request. Unsatisfied with the Town’s response, Ms. Hunt petitioned this office and this appeal, SPR23/2612, 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 town 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 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

Karen Nober, Esq. SPR23/2612 Page 2 November 10, 2023 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Town’s October 24th response In its October 24, 2023 response, the Town stated the following: Your request was for records we provided in response to another public records request. That original request was for phone records and text messages between a Town of Barnstable employee and another individual for a certain period in 2023. We provided you with the same records we provided to the original requestor. We did not provide any text messages because they had been deleted. It is my understanding that, with the exception of a small number of text messages that were personal in nature and which were deleted by the Town employee, the remaining text messages were not deleted by the Town employee who was the subject of the request or by any other Town employee. Current Appeal Ms. Hunt indicated in her appeal, that the Town did not provide her with all responsive records. Records Management 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). The Town’s October 24th response raises concerns regarding records management practices by the Town. 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 Town 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. Conclusion Given that the requested records no longer exist, I will consider this administrative appeal closed.

Karen Nober, Esq. SPR23/2612 Page 3 November 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Heather Hunt