Amanda Alix v. Shutesbury, Town of (SPR 20242560)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2024 SPR24/2560 Grace Bannasch Town Clerk Town of Shutesbury 1 Cooleyville Road, P. O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix 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 Jul 18, 2024, Ms. Alix requested five categories of records, including: [2] Town Administrator’s statement, presented at the 6/17/24 Select Board meeting, outlining her goals for the future employment contract period and her written responses to the issues brought up by Select Board members during the 6/17 meeting … [4] Town of Shutesbury’s written policy regarding the use of email and the town email system and the date such policy was approved by the Select Board … The Town provided a response on August 2, 2024. Unsatisfied with the response, Ms. Alix petitioned this office and this appeal, SPR24/2560, was opened as a result. While this appeal was pending, the Town provided a supplemental response on September 11, 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 town 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. 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 SPR24/2560 Page 2 September 25, 2024 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 Responses In its August 2, 2024 response, the Town provided a link to a video recording of the June 17th Select Board meeting, and explained that there were no written documents responsive to Request #2. In response to Request #4, the Town provided a link to the webpage of its Web Committee, and explained with regard to the date the policy was approved that it was not required to conduct research in response to a public records request. In an email dated September 11, 2024, the Town clarified, “… the Town Administrator had an old document in front of her during that meeting and did not read from it. She has not written responses to the Selectboard as a result of this conversation.” Further, “… the email use policy is written and available to the public and town officials on the Web Committee webpage.” In a telephone conversation with this office, a representative of the Town further clarified that there is no single written document describing the Town’s email use policy. Rather, the Web Committee webpage contains text describing the Town’s use of email, and providing instructions for forwarding Town email to other accounts. No Duty to Create Records; Records Available on a Public Website Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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). It is also permissible for the custodian of records to provide access to records via a link to a website. See G. L. c. 66, § 6A(d) (“If the public record requested is available on a public website ... the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website.”); see also 950 C.M.R. 32.04 (5)(e) (“A records access officer shall ... to the extent feasible, furnish the public records by providing reasonable assistance in locating the records on an appropriately indexed and searchable public website”); 950 C.M.R. 32.07 (2)(a) (“A records access officer shall inform a

Grace Bannasch SPR24/2560 Page 3 September 25, 2024 requester of the availability of records online to avoid delays and fees associated with the provision of public records”). Conclusion Accordingly, as all responsive records have been provided, I will now consider this administrative appeal closed. If Ms. Alix is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix