Angela Garhart v. Ashby, Town of - Office of the Town Clerk (SPR 20211452)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 22, 2021 SPR21/1452 Angela Jack Town Clerk Town of Ashby 893 Main Street Ashby, MA 01431 Dear Ms. Jack: I have received the petition of Angela Garhart 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 9, 2021, Ms. Garhart requested “any and all emails, including attachments, sent from and between the members of the Town of Ashby Finance Committee, from November 01, 2020 through April 10, 2021.” The request “include[s] emails, using a town or personal email address, sent from any committee member to any office or individual regarding any issue in the purview of the committee.” On June 7, 2021, the Town advised that it had provided all responsive records from four of the five committee member. The one remaining member had “not submitted any records to [the Town Clerk] after many requests.” Unsatisfied with the Town’s response, Ms. Garhart 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 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 SPR21/1452 Page 2 June 22, 2021 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 her appeal petition, Ms. Garhart states the following: Four members submitted their emails, but the fifth member, Mr. Patrick McPhee, is refusing to comply. Even after town counsel confirmed for him that this was a legal request and he was obligated, he will not turn them over to the town’s Record’s Officer. He has made many excuses for why he won't turn them over, including that he has so many emails, he needs at least ten hours of time to sort them, and that he would require an external terabyte hard drive to load them on to. 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). Please note that the Town has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. From an email to this office on June 14, 2021, and based on a phone call with this office on the same day, I understand that the Town has been communicating with Mr. McPhee in an attempt to obtain the records in his possession. I encourage the Town to continue communicating with Mr. McPhee in order to resolve any issues in obtaining the remaining records. Conclusion Accordingly, the Town is ordered to provide Ms. Garhart with a response to her 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.

Angela Jack SPR21/1452 Page 3 June 22, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Angela Garhart