Stephen J. Morgan v. Ashland, Town of - Town Manager (SPR 20210784)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 7, 2021 SPR21/0784 Susan Robie Office of the Town Manager Town of Ashland 101 Main Street Ashland, MA 01721 Dear Ms. Robie: I have received the petition of Stephen Morgan appealing the response of the Town of Ashland (Town) to two requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 29, 2021, Mr. Morgan requested: [T]he minutes of all meetings of the following regarding the subcommittees of the Public Safety Building committee. 1. Project team created on 1/30/2020 2. Working group created on 8/11/2020 3. Sub-committee created on 11/4/2020 to make building 4. Any other subcommittee or group created by this Public Safety Building Committee between 1/1/2015 and the present. The Town responded on March 17, 2021, indicating “[t]here are no records responsive to your request.” Unsatisfied with the Town’s response, Mr. Morgan appealed, and this case was opened as a result. Current Appeal In his appeal petition, Mr. Morgan explains that the groups for which he seeks records were “created and documented,” and he contends “[t]here would be no purpose to creating groups and then they not meet.” 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 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

Susan Robie SPR21/0784 Page 2 April 7, 2021 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); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 Based on the Town’s response, it is unclear whether responsive records exist. 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). In this case, it is unclear why there would be no records of the subcommittees referenced in Mr. Morgan’s request. Specifically, it is unclear whether these subcommittees ever met, and if so why no records exist of their meetings. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Morgan with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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: Susan Robie