Pease, Alan v. Ashby, Town of - Town Administrator (SPR 20140242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 12,2014 SPR14/242 Mr. Steve Ingerson Board of Selectmen, Town of Ashby 895 Main Street Ashby, MA 01431 Dear Mr. Ingerson: I have received the petition of Alan W. Pease appealing the response of the Town of Ashby (Town) to his public records request. See G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Pease requested access to a document submitted at the March 12, 2014 Board of Selectmen (BOS) meeting by you to the BOS. On March 20, 2014 Town Administrator Robert B. Hanson informed you by electronic mail that a public request had been made for the document subject to this records request. In his correspondence to you Mr. Hanson in effect also made a public records request to you for the document in question. As of the date of this determination Mr. Pease has been provided only with what is described as an incomplete copy of the document. Access to a record requested pursuant to the Public Records Law rests on the content of the record. "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, created or received by any officer or employee of any town of the Commonwealth to serve a public purpose, unless falling within a statutory exemption. G. L. c. 4, § 7(26). You are hereby put on notice that all records related to this matter that are in your possession, made or received by you in your capacity as a member of the BOS, including electronic mail records, are subject to mandatory disclosure pursuant to the Massachusetts Public Records Law. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Your response did not contain the specificity required in a denial of access to public records. Accordingly, you are advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Steve Ingerson SPR14/242 May 12,2014 Page Two You have yet to meet your burden in proving with specificity why the requested records have not been made available. You are hereby ordered, within ten (1 0) days to provide the Town and Mr. Pease with the requested records, or provide to the Town, Mr. Pease and this office, with specificity, how a particular exemption applies to each record. Failure to comply with this administrative order may result in the filing of a complaint for enforcement in the Superior Court by Mr. Rogers. The possibility that the Town and its officials may not be properly maintaining records raises grave records management concerns. A records custodian has an affirmative duty to maintain records made or received in the normal course of his or her duties. G. L. c. 66, § 6, 17, and 17c; see also 950 C.M.R. 32.03 (definition of custodian). Accordingly, I am refening this matter to the Records Management Unit (RMU) ofthis office to assist the Town in implementing appropriate records management procedures to ensure that public records are properly maintained. Supervisor of Records cc: Mr. Alan W. Pease Mr. Robert B. Hanson Mr. Teny French