Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20170470)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 11, 2017 SPR17/470 Katherine McNamara Feodoroff, Esq. Town of Ashland -Town Counsel Mead, Talerman, & Costa, LLC 730 Main Street, Suite lF Millis, MA 02054 Dear Attorney Feodoroff: I have received your petition on behalf of the Town of Ashland (Town) seeking relief from its obligation to produce responsive records. G. L. c. 66, § 10( c ); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requester. G. L. c. 66, § IO(c). Mr. Morgan has requested various records from the Town. The Town "requests that the Supervisor issue an order authorizing the Town not to respond to Mr. Morgan's records requests." Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Katherine McNamara Feodoroff, Esq. SPRl 7/470 Page2 April 11, 2017 G. L. c. 66 § lO(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 CMR 36.06(4)(b). Request for relieff rom obligation to produce responsive records In its April 4th petition, the Town "requests that the Supervisor issue an order authorizing the Town not to respond to Mr. Morgan's records requests." The basis of this request is that the Town believes "Mr. Morgan's history of public records requests is extensive." Specifically, you explain that "[s]ince, January 1, 2017, Mr. Morgan has submitted three (3) public records requests which have resulted in five (5) appeals to the Supervisor of Records. Last year, Mr. Morgan submitted sixty-four (64) public records requests which resulted in twenty-three (23) appeals against the Town." The Town has provided fee estimates for the provision ofresponsive records, however, the Town has denied subsequent requests "based upon his failure to pay for the initial request." You further indicate Mr. Morgan "seems interested in simply creating havoc through his manipulation of statutory provisions with the intent to stymie productive discourse instead of engaging the public in governmental processes as said laws intended." The Town also claims Mr. Morgan's "meritless accusations" regarding operations of the Town "cause unwarranted anxiety and distress to employees and officials, elected and appointed and are a clear demonstration of Mr. Morgan's ultimate goal to harass and intimidate." Finally, the Town claims they have "repeatedly suffered economic consequences for Mr. Morgan's failure to remit payment for records produced by the Town at his request." It should be noted that under the updated Public Records Law "the records access officer may deny public records requests from a requester who has failed to compensate the agency or municipality for previously produced public records." G.L. c. 66, § 10(d )(vi)-(vii). The Public Records Access Regulations (Regulations) provide that "[a] records access officer may provide written notice denying access to public records to a requester who has failed to compensate the custodian for previously produced public records, provided: 1. a fee estimate for a previous request was prepared in compliance with 950 CMR 32.00 and the requester agreed to pay the previous fee; and 2. the written notice details the reasons for denial, including an itemized list of any balances attributed to previously produced records." 950 CMR 32.07(2)(n).

Katherine McNamara Feodoroff, Esq. SPR17/470 Page 3 April 11, 2017 Based on the information provided in the April 4th petition, it is unclear whether. the fee estimates provided were in compliance with 950 CMR 32.00. Further, based on correspondence from Mr. Morgan, it does not appear he agreed to pay the previous fee. Therefore, the Town has not met is burden to establish its responses were made in compliance with G.L. c. 66, §lO(d)(vi)-(vii) and 950 CMR 32.07(2)(n). Conclusion Therefore, I find the Town has not met its burden to establish that relief of its obligation to respond to Mr. Morgan's request is appropriate at this time. However, if the Town requires additional time to produce the responsive records, it may submit a petition seeking an extension of time in accordance with G. L. c. 66 § lO(c). Sincerely, ~~;::,.~°1r Supervisor of Records cc: Steve Morgan Lisa Mead, Esq. Tara Ward, Town Clerk Michael Herbert, Town Manager