Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20180516)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2018 SPR18/516 Tara Ward, CMC/CMMC Town Clerk Town of Ashland- Clerk's Office 101 Main Street, 1st Floor Ashland, MA O1 721 Dear Ms. Ward: I have received the petition from Stephen J. Morgan appealing the response from the Town of Ashland (Town) regarding a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). On April 5, 2018, Mr. Morgan requested documents pertaining to the Ashland Board of Health (BOH) meeting along with the BOH's minutes. Mr. Morgan also requested emails or email chains in the last 30 days of quorum between BOH members. On April 19, 2018, the Town provided Mr. Morgan with the BOH's minutes and explained that they "reviewed emails from March 1, 2018-April 5, 2018 and there were no emails between of a quorum of BOH members." Mr. Morgan appeals the Town's response that there were no emails available. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific 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

Ms. Tara Ward, CMC/CMMC SPR18/516 Pg.2 May 3, 2018 exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). It is unclear whether there are records responsive to Mr. Morgan's request or if these records are in the Town's possession. See G. L. c. 66, § lO(b)(ii), (b)(iii). If the Town is withholding documents regarding the requested BOH's emails, the Town must identify the withheld information, cite an exemption as the basis of the withholding and explain why the exemption applies. See G. L. c. 66, § lO(b)(iv). Conclusion Accordingly, the Town is ordered to review the requests made by Mr. Morgan and provide a response to Mr. Morgan, made in accordance with the Public Records Law, its Access Regulations and this order within ten 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. If unresolved issues remain, Mr. Morgan may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mr. Stephen J. Morgan