Calming Tension Over Public Records

The Select Board is trying to calm former town officials in the wake of an e-mail concerning the public records law.

Massachusetts law requires all former officials to turn over all public records, including e-mails, to their successors, then swear under penalty of perjury that they have done so.

At Wednesday night’s meeting, former Town Treasurer Janet Swem challenged an e-mail sent to her by Town Administrator Maryellen Cranston. She said the e-mail required former officials to print out their official e-mail correspondence and turn it over to Cranston.

Norm Russell, the Select Board liaison to Town Administrative Offices, said that Cranston had not communicated with the Select Board before sending the e-mail. Chair Dave DeHerdt explained that the board’s policy is that any electronic public records, such as e-mails, should be put into PDF format and forwarded to Cranston. The documents will be more accessible if stored electronically, where they can be searched by keyword. “State law recognizes that certain public records are kept in electronic form,” DeHerdt said.

Paul Swem of Baptist Corner Road complained of tension created by Cranston’s e-mail and asked if the board could ask her to send a new e-mail with clearer guidelines as to what’s required in order to defuse the tension. DeHerdt said that the tension was unnecessary, that former officials only need to “affirm that they no longer have possession of public documents which, by law, they are not authorized to retain after they’ve left public office.”

As to how far back in time the law applies, Russell asked Town Counsel Donna McNichol, who felt three years was far enough. McNichol held that the law is designed to prevent violations of the open meeting and public records laws, and the statute of limitations on these laws is three years. The board’s policy is to recover records only from officials who have held office since the town elections in May, 2007.

When Janet Swem asked why correspondence with the Town Treasurer should be sent to the Town Administrator, DeHerdt replied that all public documents are kept by the town’s custodian of public records – the Town Administrator, in Ashfield’s case.

DeHerdt also addressed the question of what constitutes a public record, saying that routine administrative matters such as discussions of when a meeting is scheduled don’t rise to the threshold. It is only when an e-mail contains information that was used by a board or town department in making a decision that it becomes a public record.

Janet Swem also asked about deleted e-mails. She said she often deleted routine requests for matters such as account balances after she had replied to them. Russell said that former officials weren’t required to recreate records that are now gone.

DeHerdt said, “We have been very lax with regard to public documents.” Once people adjust to the new standards, things will be much easier.

DeHerdt will be meeting again with Cranston to clarify what is and is not required so she can send a revised e-mail to former officials.

“The goal here isn’t to give people a hard time,” Russell said.

David King