Doc Jones v. Leicester, Town of (SPR 20232881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2023 SPR23/2881 David A. Genereux Town Administrator Town of Leicester 3 Washburn Square Leicester, MA 01524 Dear Mr. Genereux: I have received the petition of Doc Jones appealing the response of the Town of Leicester (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 6, 2023, Mr. Jones requested “all emails to and from Selectboard Chair . . . at his [identified non-town email address] relating to [fifty-nine] keyword[d]s from May 1st 2023 until today . . .” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2839 Determination of the Supervisor of Records (November 28, 2023). The prior appeal was based on not receiving a response to the request. On November 27, 2023, the Town provided Mr. Jones with a response, and the appeal was closed. Unsatisfied with the Town’s November 27th response, Mr. Jones petitioned this office, and the current 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 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

David Genereux SPR23/2839 Page 2 December 13, 2023 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. The Town’s November 27th response The Town’s November 27, 2023 response to Mr. Jones states: I sent the request to the School Department for processing any emails sent or received from the School Department, and I requested that our IT provider compile the documents from our servers. The IT provider sent me a compressed file on November 22, 2023. The School Department sent me a link to their information on November 17, 2023. As of this writing, we have been unable to access either file. We have requests in to both providers to rectify this issue. After the documents have been successfully retrieved, I will scan them for any necessary retractions and get the information to you. Unfortunately, the size of each file requires that they be compressed into a ZIP file, which seems to be causing the problem. I will have a better timeline as soon as I have accessible information. In a November 29, 2023 email from Mr. Jones to Mr. Genereux, he stated, “I appreciate your response, but I’ll be honest it falls somewhat flat if I’m be generous. Only looking at emails On the [T]own or school’s IT system does not cover the request. To ensure that all of the pertinent records are accounted for here, you would have to have access to [an identified individual’s] email. And from what I requested, and your own admission on what sources you’ve been searching it’s clear that you do not have access to the [identified Selectmen’s] email to [perform] the proper searches for documentation. Why exactly is that?” On the same day, the Town responded, indicating, “I have access only to materials that cross onto either the Town’s servers or school’s servers. [The identified Selectman] uses a private email, so I do not have access to his mailbox. I can and will give you all emails that went to and from town and school servers, but that is all [available to me].” In an email correspondence to his office, Mr. Jones asserts, “[m]y understanding of the law here is that a search of the [identified private email] in question … would have to be done, whether it be a [Town lawyer] … Simply stating, I have access only to materials that cross onto either the Town servers or the school’s servers, especially where [the identified Selectman] has never used an email on the [T]own servers in his many years in [T]own government. My

David Genereux SPR23/2839 Page 3 December 13, 2023 understanding of the case law is that similar situations have arisen before that have held that a search of a private email would have to be searched.” Public Records not maintained in the Town government building In its November 29th response, the Town indicated that the Town does not have custody of the requested email records that may pertain to Town business. Public records, including email records that pertain to Town business, 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). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. See G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records available in a location convenient to the general public for inspection and copying. Id. In this matter, Mr. Jones requested email records that are in the possession of an identified Selectman, and which the Town has indicated that such emails that may pertain to Town and/or School business are not retained in either the Town’s email servers or the School’s email servers. I find that the Town has not met its burden in requesting and retaining emails from the identified Selectman that pertain to Town business. The Town has a duty to request from the identified Selectman, the emails that he possesses within his private email address that pertain to Town business, and retain those emails in accordance with both applicable law as well as the retention schedules. See G. L. c. 66, §§ 8, 13, 15. In addition, once the Town is in possession of those emails, it must provide Mr. Jones with the records, subject to any exemptions that may apply to the contents. Conclusion Accordingly, the Town is ordered to provide Mr. Jones 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.

David Genereux SPR23/2839 Page 4 December 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Doc Jones