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The Commonwealth of Massachusetts

William Francis Galvin, Secretary of the Commonwealth


Public Records Division
Rebecca S. Murray
Supervisor of Records
July 25, 2019
SPR19/1375

Sergio Cornelio
City Clerk
City of Everett
484 Broadway, Room 10
Everett, MA 02149

Dear Mr. Cornelio:

I have received the petition of Stephanie Solis of Mass Live appealing the response of the
City of Everett (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R.
32.08(1). Specifically, on May 20, 2019, Ms. Solis requested" ... emails sent or received by
Everett elected officials between May 13, 2019 and the present that include any of the following
keywords: 'Encore,' 'Wynn,' 'MGM,' and/or 'casino."' Ms. Solis mentioned that "[t]his
includes, but is not limited to, emails sent/received by [11 identified email addresses]." The City
provided an initial response on May 20, 2019, acknowledging receipt of the request and advising
Ms. Solis of potential fees that may be incuned while compiling the records. The City provided
another response dated May 21, 2019, indicating that it does not possess responsive records. The
City provided a supplemental response on June 29, 2019. Unsatisfied with the City's response,
Ms. Solis petitioned this office and this appeal, SPRl 9/1375, 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, § lOA(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, § lO(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.

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
Sergio Cornelio SPR19/1375
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July 25, 2019

If there are any fees associated with a response a written, good faith estimate must be
provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records
custodian must provide the responsive records.

The City's May 2P1 and June 29 1" responses

In its May 21, 2019 response, the City indicates that it " ... does not have access to the
personal email accounts of the Everett City Council." In an email dated June 29, 2019, Ms. Solis
clarified her request, indicating that she is" ... asking about city-issued emails ending in
@ c1.. everett.ma. us. "

In its June 29, 2019 response, the City states that" ... the City Council[ors] do not use
their City emails, though they are set up. [The City] do[ es] know one Councilor just started to
use the City email in the past few weeks, but other than her, none of the Council have this email
set up, they all use their personal emails which are not on the City server so [the City] cam1ot
access them."

Public records; public employees/officials

The City is reminded that the definition of a "public record" in Massachusetts 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 the Commonwealth to serve a
public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition
does not distinguish between records. Rather, the law provides that all information made or
received by a public entity, regardless of the mam1er in which it exists, constitutes "public
records."

Further, public employees have a diminished expectation of privacy with respect to


public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for
Norfolk County, 395 Mass. 274, 278 (1985). At least one Court has found that the use of a
public employee's personal email address in an official capacity renders the email addresses
public records. See Mechling v. City of Monroe, 152 Wn. App. 830 (2009).

Records Management

Please be aware safeguards must be instituted by the City to ensure that all records are
retained in accordance with both applicable law as well as the retention schedules promulgated
by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records
management and retention, the City may contact the Records Management Unit (RMU) at
617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting
state and local government entities in creating, managing, securing, and preserving records
needed to conduct business and protect the rights and obligations of citizens and government.
Training workshops on records management are conducted upon request.
Sergio Cornelio SPR19/1375
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July 25, 2019

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, § 1O(a); see also
Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Whenever original public
records are created outside the municipal offices, they must be transferred on a regular and
frequent basis to secure storage in the municipal building. Office of the Sec'y of the
Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public
Records Law (2017); see also G. L. c. 66, § 1. Even where it is necessary to keep original public
records in a location other than the municipal building, the records access officer has a duty to
maintain copies of those records within the municipal building and make the public records
available in a location convenient to the general public for inspection and copying. Id.

Based on the City's response, it is unclear why the City cannot retrieve the records
responsive to Ms. Solis' request from the City Council members. The City 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, § 1O(a)(ii).

Conclusion

Accordingly, the City is ordered to provide Ms. Solis with a response to the request,
provided in a manner consistent with this order, the Public Records Law, and its Regulations
within ten business days. A copy of any such response must be provided to this office. It is
preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Sincerely,

Rebecca S. Murray
Supervisor of Records

cc: Stephanie Solis