Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20233138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2024 SPR23/3138 Michael P. Seery Town Clerk Town of Brookfield 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Christopher Kelleher appealing the response of the Town of Brookfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 28, 2023, Mr. Kelleher requested “a complete and unedited copy of the video recording of the September 13th meeting [of the Board of Health], from the beginning to the end of the meeting.” The Town provided a response on December 19, 2023. Unsatisfied with the response, Mr. Kelleher petitioned this office and this appeal, SPR23/3138, 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 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(d)(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). 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

Michael P. Seery SPR23/3138 Page 2 January 16, 2024 Current appeal In his appeal, Mr. Kelleher argues that “these videos are not merely incidental recordings but essential records.” He further states that “[t]he Chair . . . has consistently used these videos, recorded by her husband on a personal device, for the critical task of creating official meeting minutes for every meeting” and that “[t]he consistent use of these videos by [named individual] in preparing official meeting minutes … undeniably classifies them as public records.” The Town’s December 19th response In its December 19, 2023 response, the Town states that it “has no record of response to the request, as the video was taken by a third party not affiliated with the Town.” The Town further states that the recording is a “personal property and was recorded on [a] personal device.” The Town maintains that the recording “[is] not the property of the Town or available to the town” and that the person who made the recording “does not work for the town in any capacity.” Based on the Town’s response, where the recording was not created or received by an employee of the Town in the scope of their employment, I find the records are not subject to the Public Records Law. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Kelleher is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Kelleher