Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20170487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2017 SPR17/487 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 the petition of Stephen J. Morgan appealing the response of the Town of Ashland Finance Committee (Town) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Morgan requested a copy of: 1. The document showing the unused borrowing; 2. A document showing requested, intended reuse of the borrowing; and 3. The capital plan attached to the meeting minutes for the March 21, 2017 Finance Committee meeting. Questions versus Records Requests In his April 4, 2017 email request, Mr. Morgan asked a series of questions in which he sought answers from the Town. Mr. Morgan should be advised that a records custodian and/or records access officer has no obligation under the Public Records Law to answer questions, conduct research or analyze records or information. The Public Records Law only applies to records. See G. L. c. 4, § 7 (definition of a public record). When the Town did not provide any of the responsive records, Mr. Morgan appealed. 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. Public Records Division attorney are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff members will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. 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 7/487 Page 2 April 25, 2017 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 he had not paid 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, § lO(c); see also 950 C.M.R. 32.06(4). See SPRl 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 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 it provided a proper response to Mr. Morgan. 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 ofrecords or portions ofrecords 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). Your office was provided with a copy of the appeal file, and a Public Records Division C attorney discussed this appeal with you on April 20th. I find that the Town did not meet its burden to demonstrate that it responded to Mr. Morgan's public records request in accordance with the Public Records Law and its Access Regulations. Please be advised, 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, § 1O (b ). See 950 C.M.R. 32.06(2)( c ). If the Town cannot demonstrate that it sent a proper response and fee estimate within ten (10)

Katherine McNamara Feodoroff, Esq. SPR17/487 Page 3 April 25, 2017 business days, the Town cannot assess any fees for production of the responsive records in Mr. Morgan's request. Accordingly, whereas, the Town has indicated that it will provide a written response to the request and 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 pre@sec.state.ma.us. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Steve Morgan Lisa Mead, Esq. Tara Ward, Town Clerk Michael Herbert, Town Manager