Doc Jones v. Leicester, Town of (SPR 20240516)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 4, 2024 SPR24/0516 David 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] keywor[d]s from May 1st 2023, until today…” The Town responded on November 27, 2023, November 29, 2023, December 19, 2023, January 11, 2024, January 29, 2024, January 31, 2024, February 1, 2024, and February 8, 2024. Unsatisfied with the responses, Mr. Jones petitioned this office and this appeal, SPR24/0516, was opened as a result. Prior Appeals The requested records were the subject of prior appeals. See SPR23/2839 Determination of the Supervisor of Records (November 28, 2023); SPR23/2881 Determination of the Supervisor of Records (December 13, 2023); and SPR23/3094 Determination of the Supervisor of Records (January 5, 2024). In my January 5th determination, I found that the Town may not charge a fee in satisfying this public records request. 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, § 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 SPR24/0516 Page 2 March 4, 2024 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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 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 January and February Responses In its January 11, 2024 response, the Town stated, “…the paper copies of the home email of the Leicester Board Chair…is being reviewed for redaction.” In its January 29, 2024 response, the Town stated, “[y]our order is ready.” In its January 31, 2024 response, the Town stated, “[p]lease have the courier go to the Town Administrator’s Office on the third floor for pick up.” In its February 1, 2024 response regarding only providing a flash drive, the Town stated, “[w]e discovered that the redactions that were made became visible if the paper were turned correctly in the light…we scanned all of the paper and placed them in data files on the drives given the [sic] courier. You have everything that was printed.” In its February 8, 2024 response, the Town stated, “[y]ou have been provided the records you sought…To my knowledge the Town has met [its] responsibility.” Current appeal In his appeal, Mr. Jones states, “…we have more than one issue here that will require redress.” [1.] The metadata here says that these files were all scanned on 1/25/24 between 4:30 and 5:30PM, which predates your statements on 1/29/24 that there was a box of documents to be picked up. Can you explain that? [2.] Easily half of these pages are outright blank, but don't seem to show that there's missing information. Why is that? That alone artificially has inflated the page count here. [3.] We’ve come across quite a few items that appear to be executive session materials. Some of these materials appear to relate to matters that you've already stated were withheld for just that reason. Why are they here if they've been stated to already be removed on that account? [4.] It seem that of all of this documentation that was provided, there is not a

David Genereux SPR24/0516 Page 3 March 4, 2024 single outgoing email from [an identified individual]. Can you explain that? [5.] There are multiple duplications of sections here. That further would increase the page count. Why is that? [6.] All of these emails seem to correspond with materials already held by the town. Which also comes back to an unanswered record request to determine who was the person who collated these files. [7.] We're noting that there's a pattern of documentation that's only being provided that also has corresponding copies of either emails or documentation on the town's IT system. That leaves a sizable gap where a number of individuals ([an identified individual] on the selectboard, the entirety of the Finance Advisory board) also use personal emails exclusively for government business that as we understand it have communicated with [an identified individual] previously using these methods. No Duty to Answer Questions Mr. Jones is 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Mr. Jones has submitted questions 1 through 6, I find the Town has no duty under the Public Records Law to answer such questions. Upon review of appeal number 7, I find that the basis of Mr. Jones’ appeal is unclear. Mr. Jones appears to not be contesting the redacted documents. Further the Town states it has provided the records Mr. Jones sought. Mr. Jones is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Conclusion Accordingly, I am unable to issue a determination at this time. Mr. Jones may wish to clarify his specific objections to the Town’s response. Mr. Jones is also reminded that an appeal to this office must be filed within ninety calendar days of the date of the request letter, or within ninety calendar days of the date of a written response from the record custodian. See 950 C.M.R. 32.08(1)(d); 950 C.M.R. 32.08(1)(e).

David Genereux SPR24/0516 Page 4 March 4, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Doc Jones