Anna Eliot v. Groton, Town of - Town Clerk (SPR 20240430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2024 SPR24/0430 Dawn Dunbar Town Clerk Records Access Officer Town of Groton 173 Main Street Groton, MA 01450 Dear Ms. Dunbar: I have received the petition of Anna Eliot appealing the response of the Town of Groton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 24, 2024, Ms. Eliot requested “the recording of the Park commission meeting that took place on June 6, 2023.” Previous Appeal This request was the subject of a previous appeal. See SPR24/0215 Determination of the Supervisor of Records (February 7, 2024). In my February 7th determination, I ordered the Town to clarify whether it possesses records responsive to Ms. Eliot’s request. Subsequently, the Town responded on February 7, 2024, stating that the responsive recording is not in the Town’s custody. Unsatisfied with the Town’s response, Ms. Eliot appealed, and this case 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Dawn Dunbar SPR24/0430 Page 2 February 23, 2024 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 February 7th Response In its February 7, 2024 response, the Town states the following: It is the Town’s understanding that the recording exists on the personal cell phone of ... a Town employee who previously served as Park Administrator and now serves as an Assistant Assessor. The recording does not exist in any Town files or Town servers or other computer equipment. Thus, the Town does not have custody of the recording; it exists on [the employee]’s personal cell phone, which is not owned by the Town or paid for by the Town. [The employee] used the cell phone to record the meeting in question for the sole purpose of assisting her with drafting meeting minutes. The recording was never intended to be kept as part of the Town’s files and is not in the Town’s custody. Please be advised that 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). Additionally, 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). In this case, where the responsive recording was created in furtherance of Town business, the Town has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. Conclusion Accordingly, the Town is ordered to provide Ms. Eliot with a response to the request, provided 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.

Dawn Dunbar SPR24/0430 Page 3 February 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Anna Eliot