Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20211431)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 18, 2021 SPR21/1431 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.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1221 Supervisor of Records Determination (May 25, 2021). In my May 25th determination, I ordered the Town to clarify whether it possesses additional records responsive to Mr. McPhee’s request, and I advised the Town to review applicable records retention schedules. Subsequently, the Town provided additional responsive records, and described efforts to improve records management practices. 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). 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 SPR21/1431 Page 2 June 18, 2021 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. Current Appeal In his appeal petition Mr. McPhee states that the Town “has not provided all the emails [a certain Finance Committee member] received or sent during the Record request period,” and he suggests several means by which missing emails might be retrieved. Records in Existence; Possession Custody or Control 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Town’s response, and a phone conversation between the Town and this office on June 14, 2021, I understand that the Town intends to provide Mr. McPhee with all responsive records in the Town’s possession. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. McPhee is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick McPhee