John M. Flick v. Phillipston, Town of (SPR 20190742)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 19, 2019 SPR19/741; SPR19/742; SPR19/743 Karin Foley Town Clerk Phillipston Town Hall 50 The Common Phillipston, MA 01331 Dear Ms. Foley: I have received the petition from John M. Flick, Esq. appealing the nonresponse from the Town of Phillipston's Town Clerk (Town) regarding requests for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Attorney Flick sent requests to the Town asking for records concerning individuals who used their personal e-mail addresses to conduct business on behalf of the Town. In a letter this office received on April 8, 2019, Attorney Flick made an appeal to this office stating the Town has not produced responsive records. 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 ofreceipt 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, § 1O (b ). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 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 if the Town possesses the records requested by Attorney Flick. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). The duty to comply with requests for records extends to those records 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. Karin Foley SPR19/741; SPR19/742; SPR19/743 Pg. 2 April 19, 2019 that exist and are in the possession, custody, or control of the custodian of records 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). If the records are within the Town's possession and it intends to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption). Accordingly, the Town is ordered to review the requests made by Attorney Flick and provide any requested records 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: John M. Flick, Esq.