Patrick D. McPhee v. Pepperell, Town of - Town Clerk (SPR 20211752)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 2021 SPR21/1752 Brynn Montesanti Town Clerk Town of Pepperell 1 Main Street Pepperell, MA 01463 Dear Ms. Montesanti: I have received the petition of Patrick McPhee appealing the response of the Town of Pepperell (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2021, Mr. McPhee requested “any/all information, including but not limited to the emails (sent/received), attachments, text messages, minutes between the Town of Ashby Employee/volunteers and the Town of Pepperell Dispatch center and employees between Jan 1, 2021 and May 20, 2021.” His request “include[d] the information discussed at the Town of Pepperell Dispatch center meeting Feb 4, 2021 on the grants for the Town of Ashby.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1473 Supervisor of Records Determination (June 24, 2021). In my June 24th determination, I encouraged the Town and Mr. McPhee to continue to communicate to facilitate providing records more efficiently and affordable. Subsequently, the Town provided Mr. McPhee with responsive records on June 21, 2021. 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

Brynn Montesanti SPR21/1752 Page 2 July 26, 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 indicates that he believes there are additional responsive emails not provided by the Town. He states that “emails to the Ashby Fire, Ashby highway and the Ashby Public safety building not with these [the Town] presented.” He further states that he “[does not] see any of the grants the BoS and Ashby Public safety talk about, that are coming from the Dispatch.” 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). In its June 21, 2021 response, the Town states that “this fulfills [Mr. Mchee’s] records request.” In a phone conversation with this office on July 19, 2021, the Town confirmed that no responsive emails were withheld nor redacted. Further, in an email to this office and Mr. McPhee on July 26, 2021, the Town confirmed that it provided all responsive emails from the requested date range and specified search terms of Mr. McPhee’s request. The Town also included responsive records concerning the grants mentioned in Mr. McPhee’s appeal petition. A representative of the Town further states that the Town is “confident that the information [the Town] provided to Mr. McPhee completed his request in its entirety and the subsequent request for the grants are attached in this email.” Conclusion Where the Town confirmed that it does not possess additional records responsive to Mr. McPhee’s request, I will now consider this administrative appeal closed.

Brynn Montesanti SPR21/1752 Page 3 July 26, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick McPhee