Maureen Lepak v. Brookfield, Town of - Town Clerk (SPR 20241146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 1, 2024 SPR24/1146 Michael Seery Town Clerk Town of Brookfield 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Maureen Lepak appealing the nonresponse 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 March 15, 2024, Ms. Lepak requested: … if any records exist that [an identified individual] has any business related to [a Board of Health meeting incident] in an official manner with the [T]own, I hereby request those documents be made available…. [An identified individual] recorded the meeting along with other meetings and has not provided any videos as requested. Prior Appeal This request was the subject of a prior appeal. See SPR24/1000 Determination of the Supervisor of Records (February 17, 2024). In my February 17th determination, I learned that the Town provided Ms. Lepak with a response dated April 8, 2024. Unsatisfied with the Town’s April 8th response, Ms. Lepak petitioned this office and this appeal, SPR24/1146, 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). 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 Seery SPR24/1146 Page 2 May 1, 2024 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. Att’y 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 April 8th response In its April 8, 2024 response the Town asserted: This request appears to be directed at records, if they exist, created, or maintained by [an identified individual] acting in his individual capacity. The Town does not pay for [an identified individual]’s cell phone or other recording devices despite… membership on the Board of Health. The Town simply does not have any responsibility to track or maintain content created on their personal cell phones or other video recording equipment and unrelated to the discharge of their official duties as members of the Board of Health. No member of the Board of Health is required, as part of their job duties, to record board meetings. Indeed, there is no statutory requirement that board meetings be recorded at all. Current Appeal Ms. Lepak stated in her appeal: … I was previously ask and provided a 2 second video to the [Town] based on request made, however, when asked for recordings made of meetings by another board member, the response from the Town is different. Based on Ms. Lepak’s claims, in conjunction with the Town’s response, it is unclear if the Town possesses the referenced video recording. 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, 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). Consequently, the Town must clarify if records exist. Further, the Town must provide additional information clarifying whether the video was recorded in the individual’s official capacity. The Town must clarify these matters.

Michael Seery SPR24/1146 Page 3 May 1, 2024 Conclusion Accordingly, the Town is ordered to provide Ms. Lepak 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. Lepak may appeal the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Maureen Lepak