Nicole Demakis v. Mattapoisett, Town of - Town Clerk (SPR 20253075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 29, 2025 SPR25/3075 Catherine L. Heuberger Town Clerk Town of Mattapoisett 16 Main Street, P. O. Box 89 Mattapoisett, MA 02739 Dear Ms. Heuberger: I have received the petition of Nicole Demakis, Esq., of Trovillion, Inveiss, Demakis & Hansen, appealing the response of the Town of Mattapoisett (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 6, 2025, Attorney Demakis requested the following: [1] [A] copy of the sign-in sheet for all those who attended the special town meeting Saturday Oct 4, 2025 to include registered voters and guests. [2] [T]he line-item final expense to the town to hold that meeting. [3] [C]opies of any and all communication between [two identified individuals] since your last PRR response to me on August 8, 2025, to include any emails between [two identified individuals] from either… government or private email account, any text messages between [two identified individuals] from a work or private cell phone to the extent that any town business was discussed or any and all Signal text messages between [two identified individuals] concerning [an identified individual’s] petition to rescind the vote which was the subject of our special town meeting on 10/4/25. [4] [A]ny and all written or text communication concerning anything else related to attendance at special town meeting especially as it pertains to the clearly pre- planned exchange between [two identified individuals] during that meeting. The Town responded on October 17, 2025 and October 21, 2025. Unsatisfied with the Town’s responses, Attorney Demakis petitioned this office and this appeal, SPR25/3075, was opened as a result. 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

Catherine L. Heuberger SPR25/3075 Page 2 October 29, 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 October 17th and October 21st Responses In its October 17, 2025 response, the Town provided responsive records to Items 1 and 2 of the request, as well as email correspondence responsive to Items 3 and 4. In addition, the Town stated, “I do not believe that any emails from a personal email account, nor texts from a personal cell phone, if they existed, would be considered public records under the definition of a public record set forth by the state…” In reply to the Town, Attorney Demakis stated that she could not open the records and asked for them to be resent “in a readable fashion.” Additionally, Attorney Demakis argued that “[i]f messages are about public business, they are discoverable.” In its October 21, 2025 response, the Town provided Attorney Demakis with a PDF version of the previously provided responsive records. Current Appeal In her appeal petition, Attorney Demakis stated: If personal email or devices are used for town business… we as voters of this town are entitled to know what those communications were… [The] PDF of the communications [is] not fully responsive to my request… [P]lease compel [the Town] to produce any and all communication between [two identified individuals] regardless of the device used to communicate…

Catherine L. Heuberger SPR25/3075 Page 3 October 29, 2025 In an email to this office on October 27, 2025, a Town official stated, “[t]he reason for the appeal is that the requestor believes that texts and/or emails from my private email accounts and/or my personal cell phone are public records. I sustain that they are not. I have provided all relevant public records.” Based on the information provided in Attorney Demakis’ appeal petition and the Town’s responses, it is unclear whether the Town possesses additional records responsive to the request. The Town must clarify this. 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). To the extent the Town is withholding text messages and/or emails from “private email accounts and/or [a] personal cell phone,” the Town must clarify whether the records were sent or received in furtherance of Town business. As referenced above, “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). Please also be aware that 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. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Attorney Demakis with a response to her 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 Demakis may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Nicole Demakis, Esq.