Invoice 25-03: Emails and Texts for Town Administrator

To: “Cinar, Ayca (SEC)”
Cc: “clerk@hardwick-ma.gov” , SEC-DL-PREWEB

Hello,

I do have a question. I received no communication from the Town of Hardwick about this matter on July 28, 2025 as described in the letter. In fact, the reason I filed this complaint on July 29, 2025 was because I had not received any communication from the Town on this matter.

Dear Supervisor Manza Arthur,

I am appealing the Town of Hardwick’s failure to provide text messages requested under the Massachusetts Public Records Law (G.L. c. 66, § 10) for two public records requests (SPR25/2213, Invoice 25-03, $150; SPR25/2078, $300), despite my payment of fees and your prior orders to produce responsive records. In an email dated August 18, 2025, the Town Clerk, Ryan J. Witkos, claimed that no responsive text messages exist because the Town Administrator, Justine Caggiano, uses a personal phone, deleted messages are not recoverable, and any deleted messages were “transitory.” This appeal seeks enforcement of the law, investigation of potential record destruction, and appropriate remedies.

Background of Requests

1. SPR25/2213 (Invoice 25-03, $150): On July 1, 2025, I requested all text messages, telephone call records, and emails for the Town Administrator from June 8, 2024, to July 1, 2025. I paid the $150 fee on July 14, 2025, as noted in your determination (SPR25/2213, August 7, 2025), which ordered the Town to provide responsive records by August 21, 2025. No text messages have been provided.
2. SPR25/2078 ($300): On February 25, 2025, I requested, among other records, text messages for the Town Administrator and other officials for specific periods (October 1, 2024–February 13, 2025, and January 1, 2022–July 31, 2022). I paid the $300 fee, but the Town provided only partial records (emails in a PST file) and no text messages, as noted in your determination (SPR25/2078, July 29, 2025).

Grounds for Appeal The Town Clerk’s August 18, 2025, email claims no responsive text messages exist because the Town Administrator uses a personal phone, deleted messages are not recoverable, and any deleted messages were “transitory” under Records Retention Schedule 01.022(d). I am particularly concerned that the Town Administrator deleted text messages in response to my requests, which undermines transparency and violates the Public Records Law (G.L. c. 66, § 15). These claims are insufficient for the following reasons:

1. Potential Deletion of Records Post-Request: The Clerk’s statement that the Town Administrator “has no ability to recover deleted text messages from her private cell phone” and that “any text messages that were deleted were transitory” suggests that deletions may have occurred after my requests were submitted (February 25, 2025, for SPR25/2078; July 1, 2025, for SPR25/2213). Under G.L. c. 66, § 15, custodians must preserve public records in accordance with retention schedules, and 950 C.M.R. 32.05(6) prohibits destruction of records after a request is made. If the Town Administrator deleted text messages related to Town business in response to my requests, this constitutes a violation of the Public Records Law, warranting investigation and enforcement.
2. Personal Phone Use Does Not Exempt Records: The Clerk’s assertion that text messages are unavailable because the Town Administrator uses a personal phone is legally invalid. Public records include all materials made or received by a municipal officer in connection with official duties, regardless of the device used (G.L. c. 4, § 7(26); see People for the Ethical Treatment of Animals, Inc. v. Dep’t of Fish & Game, 59 Mass. App. Ct. 1103 (2003)). Hardwick’s small size or lack of Town-issued devices does not exempt the Town from retrieving these records. The Town must take reasonable steps to access or recover text messages, and the Clerk’s claim does not relieve this obligation.
3. Improper Classification of Text Messages as “Transitory”: The Clerk’s blanket claim that all deleted text messages were “transitory” under Records Retention Schedule 01.022(d) (Correspondence: Transitory Messages) lacks specificity and fails to meet the burden of demonstrating an exemption (G.L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995)). The Municipal Records Retention Schedule (Series 1.1.2) requires retention of substantive correspondence, such as communications related to policy, decision-making, or constituent interactions. Without a record-by-record review, the Town’s categorical dismissal of all text messages as “transitory” is improper, especially if deletions were prompted by my requests.
4. Failure to Provide Deletion Logs or Metadata: The Clerk’s email does not address whether logs, metadata, or backups exist that could confirm the existence or deletion of text messages. Such records are themselves public records under G.L. c. 4, § 7(26) if they exist, and the Town’s failure to produce or investigate them suggests non-compliance with G.L. c. 66, § 15. If deletions occurred post-request, the absence of documentation raises concerns about the Town’s record management practices.
5. Non-Compliance Despite Payment and Prior Orders: I paid $150 (SPR25/2213) and $300 (SPR25/2078) for records that have not been fully provided. Your orders (SPR25/2213, August 7, 2025; SPR25/2078, July 29, 2025) required the Town to produce responsive records or justify exemptions. The Town’s failure to provide text messages, coupled with the possibility of deliberate deletions, constitutes a constructive denial. The Town’s history of incomplete responses (e.g., SPR25/1544, SPR25/2078) indicates a pattern of non-compliance, unaffected by Hardwick’s small size, as the Public Records Law applies uniformly to all municipalities (G.L. c. 4, § 7(26)).

Relief Requested I respectfully request that the Supervisor of Public Records:

1. Order the Town of Hardwick to immediately provide all responsive text messages for the specified periods and officials, as outlined in SPR25/2213 and SPR25/2078, on a rolling basis if necessary.
2. Investigate whether the Town Administrator deleted text messages in response to my requests (submitted February 25, 2025, and July 1, 2025), including any available metadata, logs, or backups to confirm the existence or destruction of such records.
3. Require the Town to provide a detailed, record-by-record explanation, supported by evidence, of why all text messages are classified as “transitory” and exempt from retention or production (G.L. c. 66, § 10(b)(iv)).
4. Assess the Town’s compliance with G.L. c. 66, § 15 and the Municipal Records Retention Schedule (Series 1.1.2) regarding the retention and potential destruction of text messages, particularly if deletions occurred post-request.
5. Order a refund of the $150 (SPR25/2213) and $300 (SPR25/2078) fees if the Town cannot provide the requested text messages, as these fees were paid for records not produced (G.L. c. 66, § 10(d)(v)).
6. If non-compliance or deliberate destruction is found, refer the matter to the Attorney General’s Office for enforcement action (G.L. c. 66, § 10A(c)).

Thank you for your attention to this matter. I can be reached at jeffery7@gmail.com or [REDACTED]. Please reference SPR25/2213 and SPR25/2078 in correspondence.

Sincerely,
Jeffery Smith