Stephen J. Morgan v. Ashland, Town of - Public Schools (SPR 20160524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 10,2016 SPR16/524; SPR16/551 Ms. Tara Ward Town of Ashland Town Clerk 10 1 Main Street Ashland, MA 01 721 Dear Ms. Ward: I have received the petition of Stephen Morgan appealing the response of the Town of Ashland (Town) to his requests for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Morgan requested: 1) Copies of proposed policies on public comments on the agenda for a June 21, 2016 Finance Committee meeting (SPR16/524); and 2) Four ( 4) categories of records related to an investigation involving a specifically identified individual (May 27 request). Mr. Morgan sent a follow-up request to the Town for "any additional documentation related to" the May 27 request (July 13 request) (SPR16/551). Having not yet received a proper response, Mr. Morgan petitioned this office. Given that that the two (2) records requests were made to the Town's Clerk's office, these appeals will be addressed by this determination. 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, § 10(c); 950 C.M.R. 32.08(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, § 1 0( c); see also District Attorney for the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Tara Ward SPR16/524; SPR16/551 Page 2 August 10, 2016 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. SPR16/524 Mr. Morgan's request for copies of proposed policies on public comments on the agenda for a June 21 Finance Committee meeting was the subject of a previous appeal. See SPR16/505 Determination of the Supervisor ofRecords (July 14, 2016). I closed appeal SPR16/505 with the proviso that the Town review and respond Mr. Morgan's request. It is my understanding the Town provided certain records responsive to the request that is the subject of SPR16/505, specifically a memorandum dated June 21, 2016 related to a "Reserve Fund Transfer Request." Mr. Morgan informed this office it is unclear whether all responsive records were provided. SPR16/551 In his appeal petition, Mr. Morgan indicates records responsive to his May 27 and July 13 requests "were not provided by [the Town]." I understand an attorney on my staff provided you a copy of these requests. Unclear if all responsive records were provided It remains unclear whether the Town provided all records responsive to Mr. Morgan's requests for public records. A records custodian is expected to use its superior knowledge to provide all records responsive to such a request. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). The duty to comply with requests for information, however, extends only to those

Ms. Tara Ward SPR16/524; SPR16/551 Page 3 August 10,2016 records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Conclusion It is my understanding members of my staff have communicated with you regarding Mr. Morgan's requests that are subject to this order. It is my further understanding that the Town is planning to review these requests and determine whether any other responsive records exist. Accordingly, I will consider this appeal closed with the proviso that the Town complete its review and provide a written response to Mr. Morgan. This written response must be prepared in a manner consistent with the Public Records Law, its Access Regulations and this order. 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. Supervisor of Records cc: Mr. Stephen J. Morgan Ms. Jennifer Ball