Patrick D. McPhee v. Ashby, Town of - Town Administrator (SPR 20210124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 2, 2021 SPR21/0124 Robert Hanson Town Administrator Town of Ashby 895 Main Street Ashby, MA 01431 Dear Mr. Hanson: I have received the petition of Patrick D. McPhee appealing the response of the Town of Ashby (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. McPhee requested copies of: • Any/all information, including but not limited to the emails (sent/received), attachments, text messages, minutes, contracts and documents for all the Board of Selectmen (Board) Executive Session[s] the Town has engaged or is engaged in from January 1, 2020 to December 18, 2020 (date of the request); • Any/all information, including but not limited to the emails (sent/received), attachments, text messages, minutes and documents for all the Board’s and Town Administrator involvement in FY22 Budget; • The Budget Master Excel sheet, most recent for both FY21 and FY22, that the Board was referring to in the public meeting December 17, 2020; and, • Any/all information, including but not limited to the emails (sent/received), attachments, text messages and documents for the USDA and UniBank or for any finance process the Town is engaged in for the public safety building. Waiver of fees In his request letters, Mr. McPhee asked the Town to waive fees for his requests because he believes that the requests are in the public interest. Mr. McPhee is advised that while a record 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

Robert Hanson SPR20/0124 Page 2 February 2, 2021 custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order a that a record custodian do so. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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, § 10(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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Records in existence 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, § 10(a)(ii). Subsequent to the intervention by a member of the legal staff of the Public Records Division, I learned that the Town intends on providing a further written response to address the issues brought forth in Mr. McPhee’s January 19, 2021 petition, and clarify whether additional records responsive to Mr. McPhee’s request are in the possession of the Town. Open Meeting Law In the Town’s December response, you explained that with respect to the responsive executive session meeting minutes, the only two executive sessions in 2020 are withheld due to active contract negotiations, and that neither of the subject negotiations have been finalized. You assert, “[p]remature public disclosure of the requested materials would materially interfere with the ongoing process.” The authority to opine on Open Meeting Law matters, including executive session meeting minutes, and documents pertaining to each of the executive session meetings, rests with the Open Government Division of the Office of the Attorney General (AGO). Therefore, I decline to opine on the requests pertaining to the executive session meetings. I advise the parties to consult with the AGO regarding those sessions and records pertaining to those sessions.

Robert Hanson SPR20/0124 Page 3 February 2, 2021 Conclusion Accordingly, the Town is ordered to provide Mr. McPhee with said response to the request in accordance with the Public Records Law, its Access Regulations and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. McPhee may appeal the substantive nature of the Town’s response to his December 18, 2020 requests within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick D. McPhee