Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20211977)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 16, 2021 SPR21/1977 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). Specifically, Mr. McPhee requested the following: 1. Any/all information, including but not limited to the emails (sent/received), attachments, text messages, minutes and the [Town], pertaining to Ashby Special Town Meeting on May 4, 2013 Article 7 for $30,000.00 “Municipal Bldg/Water Upgrades;” 2. Any/all information on the spending of Ashby Special Town Meeting on May 4, 2013 Article 7 for $30,000.00 “Municipal Bld/Water Upgrades,” including but not limited to spending receipts, bid and quotes; 3. Any/all information, including but not limited to the emails (sent/received), attachments, text messages and minutes and from the Town, pertaining to the Annual Town Meeting on May 3, 2014 Article 20 for $165,000 “Water Improvement Project” and 4. Any/all information on the spending of Ashby Annual Town Meeting May 3, 2014 Article 20 for $165,000 “Water Improvement Project” including but not limited to spending receipts, bid and quotes. Prior appeals The requested records were the subject of prior appeals. See SPR21/0245 and SPR21/0958 Determinations of the Supervisor of Records (Supervisor) (February 16, 2021 and April 27, 2021). The Town provided certain of the records responsive to Mr. McPhee’s January 21, 2021 request. In my April 27th determination, I ordered the Town to provide Mr. McPhee with a response to address whether there were any further responsive records. 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, Town Clerk SPR21/1977 Page 2 August 16, 2021 In a May 17, 2021 response from the Town’s Accountant, Ms. Theresa Walsh, Mr. McPhee was provided with copies of contracts and invoices as requested regarding the municipal building/water upgrades. Ms. Walsh also informed Mr. McPhee, “[p]lease note I have no emails, attachments, text messages, and or minutes related to this project.” On May 27th, Mr. McPhee sent Ms. Walsh an email asserting, “[t]he Town Administrator has expressed to another [identified person] that all the records for the water project are with the Fire Chief.” On August 3 and August 4, 2021, members of the Public Records Division staff sought to clarify what issues are involved in Mr. McPhee’s petition to the Supervisor, including whether he is appealing the Town’s May 17th response. In his August 3rd email, Mr. McPhee asserts, “[t]he Town has yet to provide the documents requested. The Records Access Officer Mike Bussell has all the prints, designs, quotes, bids, etc. None of these have been provided, it was all in my original request.” In his August 4th email, Mr. McPhee states, “…I did find an email from the Town accountant, but still no [e]mails, design or bid and quotes.” As a result, on August 5th, the current appeal was opened. 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). Records in Existence; Records Management In his August 4th email with regard to the records the Town still has not provided, Mr. McPhee states, “[f]or a job over $200k, there would be emails, designs, bids and quote!” In light of the contentions in Mr. McPhee’s August 4th appeal petition, the Town must clarify whether any of the Town’s departments are in possession of emails, designs, bids and quote(s) regarding the water improvement project. 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). If the Town is not in possession of the records listed in Mr. McPhee’s August 4th petition, I find it is unclear whether these records existed and subsequently were destroyed. If the records did exist, the Town must demonstrate whether it followed proper records retention protocol.

Angela Jack, Town Clerk SPR21/1977 Page 3 August 16, 2021 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. This office encourages the Town and Mr. McPhee to continue to communicate in order to facilitate providing any remaining records. Order Accordingly, the Town is ordered to provide Mr. McPhee with a response regarding any remaining records, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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