Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20170481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 25, 2017 SPR17/481 Katherine McNamara Feodoroff, Esq. Town of Ashland-Town Counsel Mead, Talerman & Costa, LLC 730 Main Street, Suite IF Millis, MA 02054 Dear Attorney Feodoroff: I have received the petition of Stephen J. Morgan appealing the response of the Town of Ashland (Town) to a request for public records. G. L. c. 66 § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Morgan requested a copy of the minutes of the March 23, 2017 open meeting regarding the Town's Affordable Housing Trust, along with a copy of all documents associated with the meeting. Mr. Morgan obtained a copy of the draft minutes of the meeting through the Town's website, free of charge. Basis of the appeal In his April 1o th petition for an appeal, Mr. Morgan has indicated that the Town does not have a list of documents that may have been used at the March 23rd open meeting posted on the Town's website. In lieu of that posting, he states that the Town was required to provide him with a fee estimate for copies of the documents in its initial response to the request. Town's response and request for relieff rom obligation to produce responsive records In an April 4, 2017 letter, the Town's Legal Counsel, Mead, Talerman & Costa, LLC, denied Mr. Morgan's request because Mr. Morgan did not pay the Town for previously requested records that the Town had already searched for and copied. On this same date, the Town petitioned the Supervisor of Records (Supervisor) to seek relief from responding to any of Mr. Morgan's public records requests until the Town receives payment for previously culled records. The Supervisor rejected the petition because it did not meet the requirements set forth in the Public Records Law Access Regulations. G. L. c. 66, § IO(c); see also 950 C.M.R. 32.06(4). See SPRI 7/470 Supervisor of Records Determination (April 11, 2017). The Town is advised that the filing of a petition to the Supervisor does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester 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 7/481 Page 2 April 25, 2017 within ten (10) business days after receipt of a request for public records. 950 C.M.R. 32.06(4 )(b ). The Town has not met its burden to establish how its April 4th letter to Mr. Morgan is a proper response and/or denial. To deny access to records, the RAO shall include in a written response to the requester: 1. The date of the request; 2. Identification of any records sought that are not within the possession, custody, or control of the agency or municipality the RAO serves; 3. Identification of the agency or municipality that may be in possession, custody or control of the public record sought, if known to the RAO; 4. Identification of any records, categories of records or portions of records that the agency or municipality intends to withhold; 5. Identification of any specific exemption in the Public Records Law or common law privilege that applies to the withheld record or records; 6. Identification of the applicability of each cited exemption or privilege to each portion of the withheld record or records; 7. Identification of any portions of responsive records that the agency or municipality intends to produce; and 8. A statement informing the requester of the right of administrative appeal to the Supervisor under 950 C.M.R. 32.08(1) and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court. 950 C.M.R. 32.06(3)(a-c) (Denial by Records Access Officer). Further, if the Town has records responsive to Mr. Morgan's request, the Town should have provided Mr. Morgan with a written, itemized, good faith estimate for any applicable fees in its April 4th letter. As a Public Records Division attorney informed you in a telephone discussion on April 2ot\ the Town cannot assess any fees with this request if the Town did not provide an appropriate response to Mr. Morgan within ten (10) business days ofreceipt of the request. A municipal RAO shall not charge a fee for the provision of a public record unless the RAO responded to the requester within ten (10) business days under G. L. c. 66, § lO(b). See 950 C.M.R. 32.06(2)(c). Accordingly, whereas, the Town has indicated that it will provide a supplemental response and will provide the records if they exist, I will consider this appeal closed with the proviso that the Town provide Mr. Morgan with the response, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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 prc@sec.state.ma.us.

Katherine McNamara Feodoroff, Esq. SPRI 7/481 Page 3 April 25, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Steve Morgan Lisa Mead, Esq. Tara Ward, Town Clerk Michael Herbert, Town Manager