Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20211221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2021 SPR21/1221 Angela Jack Town Clerk Town of Ashby 893 Main Street Ashby, MA 01431 Dear Ms. Jack: I have received the petition of Patrick 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). On April 23, 2021, Mr. McPhee requested “any and all emails, including attachments, sent to/from [a certain] member of the Town of Ashby Finance Committee to any Federal/State/ Town/TownVoter pertaining to Town of Ashby, from November 01, 2020 through April 23, 2021.” On May 5, 2021, the Town began providing responsive records on a rolling basis, and on May 6, 2021, explained that some records were not available. Unsatisfied with the Town’s response, Mr. McPhee appealed, and this case was opened as a result. 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); 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. 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

Angela Jack SPR21/1221 Page 2 May 25, 2021 The Town’s May 6th Response In its May 6, 2021 response, the Town stated that the member of the Finance Committee “told [the Town Clerk] that he deleted his emails prior to December 9th when he was not aware he needed to keep them. That is why those emails are not available.” And the Town asked Mr. McPhee “[w]hat other emails [he] believe[s] are missing?” In a phone conversation with this office on May 18, 2021, the Town further explained that the emails subject to Mr. McPhee’s request are held on the Finance Committee member’s personal email, not on a town or government email server. As a result, neither the Finance Committee member nor the Town is able to access those deleted emails. Current Appeal In his appeal petition Mr. McPhee states that the Town “is not providing him with records [and the] Town has destroyed records prior to Dec 9, 2020.” In an email to this office on May 18, 2021, Mr. McPhee also contends “[t]here can be further research with departments to pull the emails from the Board of selectmen, fire, police, Town Admin and assistant town Admin. Dispatch, etc.” Additionally, in an email to this office and the Town on May 21, 2021, Mr. McPhee provides a list of emails he believes are missing from the response, indicating the subject lines as well as the “To” and “From” addresses for each email, and including a number of Town email addresses. Records in Existence; Records Management 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 light of Mr. McPhee’s detailed list of emails, I find it is unclear if the Town may possess additional records responsive to his request. This office encourages Mr. McPhee and the Town to continue communicating to facilitate providing any remaining records. I note that the Town has been providing Mr. McPhee with records on a rolling basis, and I encourage the Town to continue doing so. Where the Town states that the Member of the Finance Committee “deleted his emails prior to December 9th when he was not aware he needed to keep them,” I find that the Town must demonstrate whether it followed proper records retention protocol. Please note, 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.

Angela Jack SPR21/1221 Page 3 May 25, 2021 Conclusion Accordingly, the Town is ordered to provide Mr. McPhee 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: Patrick McPhee