Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20191600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 21, 2019 SPR19/1600 Cindy Livingstone Town of Ashland 101 Main Street, 1st Floor Ashland, MA O1 721 Dear Cindy Livingstone: I have received the petition of Stephan J. Morgan appealing the response of the Town of Ashland (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: 1. Any agenda or minutes of the Development liaison committee from its creation to date. 2. Any document or minutes that document the appointment or creation of such group. 3. Any document which defines the charter, bylaw or role of this group in Ashland. On August 7, 2019, the Town provided Mr. Morgan a response. In the response the Town states, "[w]e do not have anything responsive to this request. At the last two Select Board meetings, it was acknowledged that based on the composition of liaison group it is a public body that would be governed by OML. The Town is working to rectify this, which will include posting a meeting and presenting draft minutes from previous meetings that will have to be accepted and available to the public so we will be in compliance with OML. This meeting has not yet been scheduled but it will be posted." Unsatisfied with this response, Mr. Morgan petitioned this office and as a result SPRl 9/1600 was opened. Current Appeal In his appeal dated August 8, 2019, Mr. Morgan writes, "[t]he explanation has the following concerns: 1. There is assumption of no documents of any type. Yet they mention posting draft minutes. None were provided and the time has elapsed to provide. I do not have them. 2. They make no mention of having any document regarding the appointment or creation One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/we• pre@sec.state.ma.us

Cindy Livingstone SPR19/1600 Page 2 August 21, 2019 of the committee yet we know by their own confirmation it was created and some communication or documents must exist for them to have been setup. 3. Non comment was made regarding this part of the request. If there is no documented authority for the creation of the committee they need to say so. If there is no authority it cannot continue to exist yet the response implies that it is a proper public body. Common sense is that it cannot be proper and have no documented role ... " Conclusion Please be advised, 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of the Town's response and the issues raised in Mr. Morgan's appeal regarding the existence of responsive records, I find it is unclear why responsive records have not been provided. Specifically, the Town must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii),(b)(ii). If such records were destroyed, the Town must demonstrate whether it followed proper records retention protocol. Please be advised, the Town must institute safeguards to ensure that all records are retained.in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Town to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Accordingly, the Town is ordered to provide a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Supervisor of Records cc: Steven Morgan