Patrick Higgins v. Northborough, Town of - Town Clerk (SPR 20242401)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2024 SPR24/2401 Timothy P. McInerney Town Administrator Town of Northborough 63 Main Street Northborough, MA 01532 Dear Mr. McInerney: I have received the petition of Patrick Higgins appealing the response of the Town of Northborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 13, 2024, Mr. Higgins requested “copies of all emails sent to, or received at, [a specified email address]@gmail.com regardless of author or subject matter anytime in the month of August 2024.” The Town responded on August 16, 2024. Unsatisfied with the Town’s response, Mr. Higgins petitioned this office, and this appeal, SPR24/2401, 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. 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 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

Timothy P. McInerney SPR24/2401 Page 2 September 9, 2024 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Higgins contends the following: [The Town Administrator] is trying to claim that his use of the [the specified email address]@gmail.com for town business does not mean that all of the emails in that email account are now public records. I have asked for 15 days of emails to insure that no other town business is being sent to or from that email address in an attempt to circumvent the records retention requirements for emails. The Town’s August 16th Response In its August 16, 2024 response, a representative for the Town explains the following: With respect to my use of the ‘[specified email address]@gmail.com’ account when I sent the Town’s response to your records request, I inadvertently failed to use my Town of Northborough e-mail address. My gmail account is a private account that I use for non-Town private correspondence and there are no e-mails sent from or received by the address that are related to Town business. To the extent there are e-mails either sent or received by me on that e-mail address, beyond the e-mail I sent to you, the correspondence are private and are not related to Town business, as they are between me and private third parties, and they are therefore exempt from disclosure under Exemption (c) of the public record law. Possession, Custody, or Control The Town 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). Additionally, 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). Based on issues raised in Mr. Higgins’ appeal, it is unclear whether the Town possesses additional records responsive to the request. Specifically, where at least some Town business was conducted using the private email address, it is unclear whether any additional emails were sent or received in furtherance of Town business during the requested time period using the specified private email address. The Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Higgins with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Timothy P. McInerney SPR24/2401 Page 3 September 9, 2024 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. Sincerely, Manza Arthur Supervisor of Records cc: Patrick Higgins