Celeste DeMarco v. Wellesley, Town of - Town Clerk (SPR 20232649)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2023 SPR23/2649 K. C. Kato Town Clerk Town of Wellesley 888 Worcester Street, Suite 140 Wellesley, MA 02482 Dear Ms. Kato: I have received the petition of Celeste DeMarco appealing the response of the Town of Wellesley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2023, Ms. DeMarco requested “…all correspondence between [two identified individuals] between 12/1/2016-2/4/2018.” On November 2, 2023, the Town stated, “[a]s [an identified individual] is not a Town employee, we do not have access to his emails and therefore have no responsive records.” As a result of the Town’s denial of the public records request, Ms. DeMarco petitioned the Supervisor of Records (Supervisor), 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 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

K. C. Kato SPR23/2649 Page 2 November 17, 2023 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 her petition, Ms. DeMarco states, “[s]ome of the documents have already been produced to others by the Town. [An identified individual] is the Town attorney, and he cannot possibly evade the [P]ublic [R]ecords [L]aw simply because K. C. Kato, doesn’t personally have access to his emails.” While this appeal was pending, on November 9, 2023, the Town provided a supplemental response, indicating: On October 25, 2023, Ms. Demarco made the following public records request to the Town of Wellesley: “Please produce all correspondence between [two identified individuals] between 12/1/2016-2/4/2018.” On November 2, 2023, Ms. Demarco was informed that, because I am not a Town employee, the Town of Wellesley does not have access to the emails that Ms. Demarco is seeking and, therefore, the Town is not in possession of any records responsive to her request. That same day, Ms. Demarco emailed your office appealing the Town’s response to her request. Ms. Demarco alleges that some of the requested documents have already been produced to other members of the public and argues that Town Counsel’s emails should be considered public records, even though the Town does not have access to them. Under M.G. L. c. 66, § 10, A records access officer…shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record…provided that… the public record is within the possession, custody or control of the agency or municipality that the records access officer serves. Additionally, the statutory definition of “public records” contains exemptions providing the basis for withholding records completely or in part. See A Guide to the Massachusetts Public Records Law, p. 12 (“Guide”). In the spirit of good faith, without waiving the right to argue that the emails Ms. Demarco is seeking are not public records subject to disclosure, I have performed a search of my email server for the correspondence that Ms. Demarco is seeking. This search revealed there are no records in this office’s possession, custody, or control that are responsive to Ms. Demarco’s request.”

K. C. Kato SPR23/2649 Page 3 November 17, 2023 No Duty to Create Records 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). Where the Town indicates that it does not possess records responsive to the request, I find that Ms. DeMarco’s appeal regarding the October 25th request is resolved. New Request In her October 25th request that is the subject of this appeal, Ms. DeMarco requested: “…all correspondence between District Attorney . . . and [an identified individual] between 12/1/2016-2/4/2018.” On November 9, 2023, after receipt of the Town’s supplemental response, Ms. DeMarco emailed this office and the Town. In her email correspondence, Ms. DeMarco appears to expand her October 25th request, stating, “…any email that Attorney . . . sent to [an identified individual] that was also sent to Superintendent . . . [of the Wellesley Public Schools], and/or other employee of the [T]own should also be produced. These emails are certainly within the [Town’s] custody and control and should be produced immediately.” Ms. DeMarco is reminded that a requestor may petition the Supervisor only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for “…any email that Attorney . . . sent to [an identified individual] that was also sent to Superintendent . . . [of the Wellesley Public Schools], and/or other employee of the [T]own . . .,” was not made directly to the Town’s RAO regarding her original request, I decline to opine on that matter. If Ms. DeMarco would like to obtain copies of these records, Ms. DeMarco is advised that she should make a separate public records request to the Town’s RAO. Ms. DeMarco may then appeal the substantive nature of the Town’s response within ninety calendar days. See 950 C.M.R. 32.08(1); see also Jaideep Chawla v. Dep’t of Revenue, Suffolk. Sup. No. l 784CV02087, at 2. (January 23, 2019) (holding that “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for.” Conclusion Accordingly, where the Town has confirmed that it does not possess records responsive to the October 25th request, I will consider this administrative appeal closed.

K. C. Kato SPR23/2649 Page 4 November 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Celeste DeMarco