Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20212274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 20, 2021 SPR21/2274 Tara M. Ward, CMC/CMMC Town Clerk Town of Ashland 101 Main Street; 1st Floor Ashland, MA 01721 Dear Ms. Ward; I have received the petition of Stephen J. Morgan appealing the response of the Town of Ashland (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 27, 2021, Mr. Morgan requested: “[p]lease post or provide documentation discussed in [l]ast nights [P]lanning [Board’s] hearing regarding the historical graves at 90 Concord St. I am particular[ly] interested in a document that covers the name used of Francis Pool cemetery and records of burials at the site. Further any record of size of the burial site from the historical records. Also, please post or provide a document or page of the [Z]oning [B]ylaw that states the setback required around a cemetery in the [T]own of Ashland from other uses including municipal.” On August 30th, the Town Clerk responded, stating, “[t]he records the requestor is referring to do not exist in [the Town] as all this land was Framingham at the tie. The requestor can ask Framingham for the records. Ashland was incorporated in 1846, therefore there are no records responsive to his request. We are looking for information regarding zoning.” Also on August 30th, Doug Scott, the Town’s Building Commissioner responded, “I have looked thru the Town By Laws and also the Mass laws regulating cemeteries. I would not call the site at the Mindess School a cemetery, but instead a Burial Ground, which is really under the Mass Historic prerogative. [Mr. Morgan] should contact them as we do not have any regulations for setback, nor is it mentioned under our zoning ordinances.” On September 1st, the Town, using its public records request system, sent Mr. Morgan this message, “Peter Matchak, Town Planner, confirmed he does not have any records responsive.” 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

Tara M. Ward, CCM/CMMC SPR21/2274 Page 2 September 17, 2021 Unsatisfied with the Town’s responses, on September 7, 2021, Mr. Morgan petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition to the Supervisor, Mr. Morgan asserts, “[t]her is a video of the [P]lanning [B]oard hearing in August where this was discussed and in particular [the Town] determined to change the name of the cemetery. As it is clear the [T]own as the records custodian has the obligation to understand and respond appropriately to the request and have instead claimed a document does not exist. Here again they claim to have no responsive records after it was discussed in a public meeting and after 3 years of planning this project.” 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 In its August 30th and September 1st responses, the Town departments informed Mr. Morgan that it has no records responsive to his request on August 27th pertaining to the land records and by-laws regarding the cemetery/burial ground that is the subject of the request. The Town referred Mr. Morgan to the City of Framingham as the land where the cemetery was located was part of the City of Framingham. In addition, the Town informed Mr. Morgan that the Town does not have any regulations for setbacks, nor is it mentioned under the Town’s zoning ordinances. 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 Mr. Morgan’s September 7th petition which states, “[t]here is video of the [Town’s] [P]lanning [B]oard hearing in August where this was discussed and in particular [the] [T]own determined to change the name of the cemetery. As it is clear the [T]own as the records custodian has the obligation to understand and respond appropriately to the request and have instead claimed a document does not exist.” It is Mr. Morgan’s contention that since this was discussed at a public meeting, and after three years of planning this project, the Town should have a record pertaining to this matter. Based on this information, I find that it is unclear if the Town may possess meeting minutes and/or documents that might have been discussed at the open meeting. I find that the Town must clarify this issue. This office encourages Mr. Morgan and the Town to continue communicating to facilitate providing any records in the Town’s possession pertaining to the August meeting of the Planning Board.

Tara M. Ward, CCM/CMMC SPR21/2274 Page 3 September 17, 2021 Conclusion Accordingly, the Town is ordered to provide a response to the request, 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: Stephen J. Morgan