Thomas Siefert v. Shutesbury, Town of (SPR 20241091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2024 SPR24/1091 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road P.O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Thomas Siefert appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2024, Mr. Siefert requested, “[a] copy of the video recording of the Shutesbury Board of Health meeting held via Zoom on March 17, 2021.” The Town responded on April 10, 2024. Unsatisfied with the Town’s response, Mr. Siefert petitioned this office and this appeal, SPR24/1091, was opened as a result. While this appeal was pending, the Town provided a supplemental response on April 12, 2024. 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. 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. 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

Grace Bannasch SPR24/1091 Page 2 April 25, 2024 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 April 10th response In its April 10, 2024 response, the Town stated, “[t]hat video was lost due to technical difficulties…It no longer exists and therefore the Town cannot produce it.” Current Appeal In his appeal, Mr. Siefert stated, “[t]he Town Clerk wrote that the video was lost due to technical difficulties. However, I have knowledge of the existence of a copy of the video.” In an email to this office on April 12th, the Town explained the following, “[t]hat recording was made on a Mount Holyoke College zoom account not a Town zoom account and the individual who hosted no longer works there, and when we tried to get a copy back at the time we weren’t able to. To the best of my knowledge, the recording no longer exists. It certainly is not a record within the [T]own’s custody…” In an April 16th phone call between the Town and a Public Records Division staff attorney, the Town confirmed that it does not have a copy of the requested record. The Town stated that numerous attempts had been made by IT to retrieve the record, but were unsuccessful. No Duty to Create Records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Records Management 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). The April 10th response raises concerns regarding records management practices by the Town. Please be aware safeguards must be instituted by the Town to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Town may contact the Records Management Unit (RMU) at 617- 727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state

Grace Bannasch SPR24/1091 Page 3 April 25, 2024 and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Conclusion Accordingly, whereas the requested record no longer exists, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Thomas Siefert