Roxanne Gunther v. Monson, Town of - Town Clerk (SPR 20240667)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 15, 2024 SPR24/0667 Mary F. Watson, CMMC Town Clerk Town of Monson 110 Main Street Monson, MA 01057 Dear Ms. Watson: I have received the petition of Roxanne Gunther appealing the response of the Town of Monson (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 8, 2023, Ms. Gunther requested, “…any and all [emails] from the following departments, Town Administrator, all Select Board members (past and present), Town Counsel, Human Resources and the Building Department that have . . . May Hill Rd and IR Whitney Ave.” In a subsequent communication, Ms. Gunther clarified that the date range of records she was seeking are from March 9, 2023 to December 8, 2023. Prior Appeal This request was the subject of a prior appeal. See SPR24/0372 Determination of the Supervisor of Records (February 21, 2024). In my February 21st determination, I directed the Town to clarify if it possessed any records responsive to Ms. Gunther’s request. On February 26, 2024, the Town provided Ms. Gunther with a response along with sample screen listings. Unsatisfied with the Town’s February 26th response, Ms. Gunther petitioned this office and this appeal, SPR24/0667, 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 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

Mary F. Watson, CMMC SPR24/0667 Page 2 March 15, 2024 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. 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 26thresponse In its February 26, 2024 response, the Town asserts, “[we] respectfully request that the [T]own be allowed to send [Ms. Gunther] a screen listing of emails of the subject line and content to determine which emails she wants. A lot of the content of these emails are duplicated from her. Since Ms. Gunther has expressed concern to [the Town] in the past about receiving duplicated emails, [the Town feels] this would be sufficient to fit her needs.” [The Town Clerk] states further, “I am sending this letter along with one version of the screen listing. There are approximately thirteen listings with approximately seventeen emails shown in each listing.” Current appeal In her appeal, Ms. Gunther states, “…this [February 26th response] that was sent to your office and in looking at it, I don’t think [this] will work for me. I would just like to have the copies of the e-mails as requested and can figure out duplicates if I have to. You will have to click on the screenshot to see what I am talking about…” 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). Further, a municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. If the Town is planning to charge Ms. Gunther with the cost(s) for providing the responsive emails, the Town must provide Ms. Gunther with a fee estimate. Once fees are paid, a records custodian must provide the responsive records.

Mary F. Watson, CMMC SPR24/0667 Page 3 March 15, 2024 Ms. Gunther and the Town are encouraged to communicate in order to facilitate producing records efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Ms. Gunther 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. Ms. Gunther may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Roxanne Gunther