Quinn O’Sullivan v. Southborough, Town of (SPR 20241668)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1668 Mark Purple Town Administrator Town of Southborough 17 Common Street Southborough, MA 01772 Dear Mark Purple: I have received the petition of Quinn O’Sullivan, Esq., of D’Ambrosio LLP, appealing the response of the Town of Southborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 31, 2024, Attorney O’Sullivan requested, “… all emails sent or received from or to any member of the Town Select Board between December 3, 2018 and January 10, 2019. This request pertains to the Town email accounts of all Select Board members during the above time frame. I ask that the records produced be certified.” The Town responded on February 21, 2024, March 5, 2024, and April 5, 2024. Unsatisfied with the Town’s responses, Attorney O’Sullivan petitioned this office and this appeal, SPR24/1668, 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. 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. 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

Mark Purple SPR24/1668 Page 2 June 17, 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 February 21st, March 5th and April 5th responses In its February 21, 2024 response, the Town provided a link to access the responsive records. The Town provided a supplemental response on March 5, 2024, asserting that the Town is working to see if the documents can be produced “in a more usable format.” In its April 5, 2024 response, the Town asserted: …since your request generated a large number of emails, with many attachments, the emails were pulled as Outlook files and then exported to pdfs (a searchable, machine readable format). This is the program the Town uses to produce large numbers of documents. Once the export is completed, it is then routinely deleted. In order to provide the documents in a different format, the entire process would need to be repeated and then a lengthy conversion of documents performed. The Town is currently calculating the estimated time necessary to perform this conversion and the reasonable fees associated therewith. We will provide you with this estimate very shortly…. Current Appeal On February 29, 2024, Attorney O’Sullivan expressed to the Town that the records are not accessible in the format produced and requested records in their original native format. Attorney O’Sullivan further followed up on this issue on March 14, 2024, March 25, 2024 and April 2, 2024. In her appeal, Attorney O’Sullivan states: “[h]ave you made any progress with the Town on this issue? Again, the records as produced are essentially inaccessible in the present format. Please let me know the status of the Town’s efforts to correct this.” Preferred format A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). See also G.L. c. 66, § 6A(d). Also, “[a] records access officer shall presume a requestor prefers electronic copies and must provide electronic records in native form when possible.” 950 C.M.R. 32.07(1)(d). In light of Attorney O’Sullivan’s appeal, I find the Town must clarify whether the responsive report can be provided in the native format that Attorney O’Sullivan requested.

Mark Purple SPR24/1668 Page 3 June 17, 2024 Conclusion Accordingly, the Town is ordered to provide Attorney O’Sullivan 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. Attorney O’Sullivan may appeal the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Quinn O’Sullivan, Esq.