Veronica Flytrap v. Townsend, Town of (SPR 20251304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2025 SPR25/1304 Kathleen M. Spofford Town Clerk Town of Townsend 272 Main Street Townsend, MA 01469 Dear Ms. Spofford: I have received the petition of Veronica Flytrap appealing the response of the Town of Townsend (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2025, Ms. Flytrap requested the following records from “January 1, 2020 – March 10, 2025[:]” [1] . . . Emails from Personal Email Accounts . . . [:] . . . [E]mails sent to or received by [an identified individual] using any personal (non-Town-issued) email account, where the subject matter relates to official Town of Townsend business. . . . [2] . . . Call Logs from Personal Phones . . . [:] . . . [L]ogs of phone calls made or received using [an identified individual’s] personal phone number(s) where official Town business was discussed. . . . [3] . . . Text, Instant, and Direct Messages from Personal Accounts . . . [:] . . . [A]ny messages exchanged via SMS, MMS, Facebook Messenger, WhatsApp, Instagram, Signal, or other electronic messaging platforms or apps on [an identified individual’s] personal devices that pertain to official Town business. . . . [4] . . . Browser Search History from Personal Devices . . . [:] . . . If [an identified individual] used [their] personal device to perform browser searches during Select Board meetings or while conducting Town-related business, then that history constitutes public records subject to retention and disclosure. . . . Accordingly, I request: [a] A written certification under the penalties of perjury that no responsive browser search history exists and that no such records have been deleted, altered, or concealed; [b] A statement regarding whether [an identified individual] used personal devices to conduct browser searches in the course of [their] official duties; 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

Kathleen M. Spofford SPR25/1304 Page 2 May 22, 2025 [c] Disclosure of any applicable Town policy regarding the retention of public records, including digital activity generated on personal devices used to perform official functions. Previous Appeal This request was the subject of a previous appeal. See SPR25/0966 Determination of the Supervisor of Records (April 22, 2025). In my April 22nd determination, it was my understanding that the Town intended on providing a further response. The Town responded on May 6, 2025. Unsatisfied with the Town’s response, Ms. Flytrap petitioned this office and this appeal, SPR25/1304, was opened as a result. While this appeal was pending, the Town provided a supplemental response on May 16, 2025. 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 custodian must provide the responsive records. The Town’s May 6th and May 16th Responses In its previous April 3, 2025 fee estimate, the Town provided a total fee estimate of $2,250.00. The Town indicated that it would require a total of 90 hours of work and would not charge for the first two hours. The Town additionally provided the following information concerning the tasks involved, and the amounts of time allocated to each task: [Item 1] . . . [An identified individual] . . . has four personal e-mail accounts; and the Town estimates that it will require approximately 60 hours to extract, i.e. search for, compile, segregate, and produce, responsive records from among the thousands of emails in these email accounts, over the more than five-year period

Kathleen M. Spofford SPR25/1304 Page 3 May 22, 2025 you specify in your request, or 15 hours per account. . . . [Item 2] . . . The Town estimates that it will require approximately 12 hours to review telephone records provided by [an identified individual’s] cellular telephone provider, searching for and identifying each instance where she contacted, or where she was contacted by, extension(s) within Townsend Town Hall. . . . For the Town to identify other numbers associated with “official Town business,” you must provide those numbers. It is unreasonable to expect that [an identified individual], or the Town, will be able to correlate telephone numbers identified in logs from months or years ago with specific individual(s); and, moreover, to determine that these call(s) were related to Town business. [Item 3]. . . The Town estimates that it will require approximately 10 hours to extract, i.e. search for, compile, segregate, and produce, responsive records from [an identified individual’s] cellular telephone text messages and Facebook Messenger messages, to the extent that they exist. [Item 4] . . . At present, [an identified individual] reports that she only has responsive records from March 1, 2025 to the present. The Town estimates that it will require approximately 8 hours to not only review [an identified individual’s] search/browser history from March 1, 2025 to the present, but to also cross- reference the same with the date(s) and time(s) of “public meetings,” “town- related research or policy preparation,” and/or “activity supporting deliberation or decision-making.” In its May 6, 2025 response, the Town confirmed it would charge a rate of $25 per hour, which is the hourly rate of the lowest paid Town employee with the necessary skills to perform the required tasks. In its supplemental May 16, 2025 response, the Town stated, “the Town suggests that you modify the scope of your request so that it can produce the responsive records more efficiently and more affordably in accordance with G. L. c. 66, § 10(b)(vii). . . .” In support of this contention, the Town cited Jaideep Chawla v. Dep’t of Revenue, Suffolk. Sup. No. 1784CV02087 (January 23, 2019), and advised: Please be advised that G. L. c. 66, §10(a)(i) requires that public records requests “reasonably describe” the records sought. . . . Here, as in Chawla, the language of your request . . . is very broad and calls upon non-lawyer administrative personnel to interpret the scope of your request and make fine judgments about what documents are and are not sufficiently related to the category of materials you requested. You have therefore failed to satisfy the statutory standard. Current Appeal In her May 9, 2025 appeal petition, Ms. Flytrap objects the Town’s fee estimate. Ms.

Kathleen M. Spofford SPR25/1304 Page 4 May 22, 2025 Flytrap additionally objected to the Town’s supplemental May 16, 2025 response in an email to this office on May 21, 2025. Reasonable Description of Records Sought Please be aware, the Public Records Law states that a records access officer must furnish a copy of any public record “provided that the request reasonably describes the public record sought.” See G. L. c. 66, § 10(a)(i). In a recent case, the Superior court found that under the public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept. of Revenue, Suffolk Sup. No. 1 784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgements about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” As such, requests that seek “all records relating to….,” “all records concerning….,” or “all records regarding…” are not sufficiently particular as to satisfy the statutory standard of a request that “reasonably described the public record sought.” See G. L. c. 66, § 10(a)(i). Consistent with the decision in Chawla, I find that the language, “where the subject matter relates to official Town of Townsend business[,]” “where official Town business was discussed[,]” and “that pertain to official Town business. . .” does not satisfy the statutory standard for the request that reasonably describes the public record sought. See Chawla, at 2. Ms. Flytrap may wish to provide clarification regarding the specific records she is seeking. Once Ms. Flytrap has provided the needed clarification, the Town must provide a response within 10 business days. This office encourages Ms. Flytrap and the Town to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Flytrap wishes to submit another public records request to the Town as outlined above, and is unsatisfied with the response, she may again appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Ms. Flytrap is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c).

Kathleen M. Spofford SPR25/1304 Page 5 May 22, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Veronica Flytrap Alexander M. Castro, Esq.