AYER — Selectmen Jim Fay and Gary Luca both have used their personal email accounts to conduct town business for years.
Last summer, Information Technology Director Cindy Knox established official town-network email addresses for each individual selectman. Fay and Luca were provided town email accounts of email@example.com and firstname.lastname@example.org.
Luca began to use his, according to communications received by Nashoba Publishing; however, the newspaper has little anecdotal evidence that Fay ever embraced the use of his town-issued email address.
A public record is defined as “all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics.” There is a list of situations in which a record, while public, is exempt from records requests.
On March 8, Scott Houde of Ayer sent a records request to Town Administrator Robert Pontbriand, “requesting all emails of Selectmen James Fay and Gary Luca” sent “between them and Trinity Financial” dating back to Nov. 1, 2011 through to the date of his request.
“The request was specific for the official email addresses in the ayer.ma.us server and personal email accounts,” Houde said. Houde did not specify the personal accounts sought. But the two have frequently appeared in the Ayer Yahoo chat room using the addresses email@example.com and firstname.lastname@example.org.
Under the Public Record law, a public body has 10 days to either produce the documents or cite the applicable exemption that can block the records’ release.
On March 23, Pontbriand answered Houde’s request on behalf of Fay and Luca. “A thorough research and review of the request has generated no e-mail correspondence of BOS members Jim Fay and Gary Luca with Trinity Financial from Nov. 1, 2011 to the present on either town or personal email accounts.”
Houde doubted that could be possible given the unfolding of Trinity’s proposal before Super Town Meeting and Fay’s championing the company’s cause. Houde confronted Fay in a March 29 email which Fay sent to Nashoba Publishing.
“I filed complaints with the State Ethics Commission and the Secretary of Public Records based upon the fact that in four months preceding Super Town Meeting not a single email existed between Trinity and yourself on personal or official email accounts.”
Houde filed his complaint on March 24, four days before Ayer and Harvard voters denied Trinity’s request to residentially rezone Vicksburg Square on Devens. The development company sought to convert the empty Army buildings into an $83 million, 246-unit affordable-housing apartment complex.
Fay, Luca and Selectman Carolyn McCreary formed the three-member majority on the Ayer Board of Selectmen, voting to recommend approval of Trinity’s request on March 21.
Houde’s records request back to Nov. 1 would include the period of time in December when Fay’s support for the project wobbled.
“If I were to vote today, I’d say no to Vicksburg Square,” said Fay at a Dec. 14, 2011, joint meeting of the selectmen and Finance Committee. Fay and two others attended a Jan. 5 tour of Trinity’s Boston projects. Fay immediately reversed his opinion and again supported the company’s Devens drive.
“I have given this a lot of thought,” said Fay. “I defy anyone to say I’m flipping on this. I’m gathering my facts before I make a final decision.”
Luca remained steadfastly in favor of the Trinity project. Houde’s public records request did not include McCreary.
Houde and his Finance Committee peers unanimously recommended against the proposal. The committee cited heavy municipal carrying costs for whatever town eventually attained jurisdiction over Vicksburg Square.
All five members of the Finance Committee, including Houde, were in attendance on Nov. 4, 2009, for a seminar taught by town attorney Lauren Goldberg of Kopelman and Paige. The topic was compliance with the Public Records and Open Meeting Laws.
Goldberg warned the crowd, which included just McCreary from the Board of Selectmen, that under the Public Records Law, emails relating to public business are public record, no matter where the record was created or where it was received.
“As a result, if a municipal official or employee receives or creates an email on their home computer that relates to municipal business, that email is a public record subject to disclosure upon request,” according to Goldberg’s handout that evening.
Despite that warning, McCreary continues to use her personal email address, email@example.com, in conducting town business and in the Ayer Yahoo chat room.
Likewise, Selectman Frank Maxant, a routine contributor to the chat room, uses his personal email address, firstname.lastname@example.org, for town business. Only selectman Pauline Conley abruptly stopped using her personal email address and began using email@example.com, when issued a town email address last summer.
Goldberg’s lecture also warned against deleting emails relative to municipal business that reside on a home computer and advised that “consideration should be given to the content of such emails.”
“For example, municipal officials and employees should consider whether to include personal information or banter in an email, as it is possible that such email may ultimately require disclosure,” states the Kopelman and Paige primer. “While an exemption to the Public Records Law may be applicable to such personal information, disputes regarding the status of such information can be time consuming and embarrassing.”
Regarding Houde’s challenge, Fay doesn’t deny corresponding to Trinity via email. Instead, Fay emailed his peers for backup in fending off Houde’s record request.
“My communication between Trinity and myself was personal,” wrote Fay in a March 29 email. “[The] town administrator has any copies of my official correspondence electronic or otherwise, if there are any.”
Otherwise, Fay claimed, “I keep no copies of emails, I delete all almost daily.”
Fay appealed to the board to support his request for a legal opinion from town counsel on his practice and Houde’s request.
“I would like to know by what legal authority and what basis was this request initiated and then complained about when Scott got my personal reply?” wrote Fay. “I ask the BOS to support my request for a legal opinion on this matter so we may clear the issue and move forward to the more important business before us.”
“On a personal note, I am disappointed Scott Houde did not reply to my response when I said if you want to know what I said to Trinity just ask me,” wrote Fay.
The Public Record Law permits demands for the release of records and no reason need be given for the record request. “A records custodian may not ask the requester the purpose of his or her request,” noted Goldberg in her 2009 literature for Ayer boards and committees regarding the Public Records Law.
Fay copied his email to Nashoba Publishing, making reference to “Sunshine Week,” the national annual campaign hosted by media groups to highlight the importance of open government and freedom of information, which fell this year from March 11 to March 17.
“I advise the media in support of what I believe is that Sunshine Week is every week,” wrote Fay.
Houde states that he had heard from the Secretary of State’s Office confirming receipt of his complaint. On March 26, the intake coordinator requested “the email from the town administrator with the request and reply of no emails. I have not heard anything further in this matter.”
Houde told Fay that he acted singularly in his request. “My actions are of a private citizen in this matter.”
“I firmly believe in transparency in government, especially at the local level,” said Houde to Fay. “I was deflated to learn, through your admission, that public records were being intentionally deleted.”
Luca said he was “kind of perplexed” that Houde sent a request for private emails to the Town Administrator “when an email directly to me would have worked just as well.” Luca noted that Houde requested records Luca presented at the March 1 Trinity Public hearing at Ayer Town Hall.
“I believe I promptly answered the request the same day to Mr. Houde, Selectmen Conley and you,” said Luca to this reporter. “Although Mr. Pontbriand may by the custodian of public records he isn’t the custodian of private emails but graciously acquiesced to the request by Mr. Houde after asking me directly about my private emails.”
“Personally, I see it as more of a witch hunt and the implication that I don’t agree with transparency in government is ludicrous and insulting since I am an open book and have never — I repeat, never — advocated for anything less than transparency in government.”
Follow Mary Arata at twitter.com/maryearata.