Sarah McKee v. Amherst, Town of - Office of the Town Clerk (SPR 20212715)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2021 SPR21/2715 Susan Audette Town Clerk 4 Boltwood Avenue Amherst, MA 01002 Dear Ms. Audette: I have received the petition of Sarah McKee appealing the response of the Town of Amherst (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2021, Ms. McKee requested, among other items, “the Town of Amherst’s Retainer Agreement, or whatever it might be called, with KP Law.” On August 6, 2021, following the Town’s initial response, Ms. McKee clarified her request, explaining that she was requesting the following: [a]ny and all documents constituting one or more written agreements between the Town and KP Law that set(s) forth • the services that KP Law and the Town have agreed that KP Law will perform for the Town; • any responsibilities of the Town in that regard; • the span of time that the agreement(s) cover(s); and • the agreed remuneration to KP Law. Previous Appeal This request was the subject of a previous appeal. See SPR21/2262 Supervisor of Records Determination (September 20, 2021). In my September 20th determination, I ordered the Town to provide a subsequent response. Subsequently, the Town provided a subsequent response on October 8, 2021, including one responsive letter. Unsatisfied with the Town’s response, Ms. McKee further appealed, and this case was opened as a result. 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

Susan Audette SPR21/2715 Page 2 October 26, 2021 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 agency or municipality 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In her appeal petition, Ms. McKee contends that the “purported response to [her] public record request is incomplete.” She explains that she “requested a copy of the Town of Amherst’s retainer agreement, whatever the form it might take, with KPLaw LLC.” She further argues that “evidently there is some agreement as to an hourly rate or rates. Presumably that agreement is in writing, in hard copy or pixels or both. A document stating that KPLaw’s rate has gone up by $10. per hour is however an incomplete response.” The Town’s October 8, 2021 Response In its October 8, 2021 response, the Town provides a copy of a letter dated February 26, 2021 describing a recent raise to the law firm’s hourly rate. In its response, the Town also states the following: Where the Town and the firm have no “retainer agreement” setting forth the scope of work to be performed in connection with a particular payment each month, or an arrangement whereby the firm draws down from a “deposit” made by the Town (i.e., monies that would be retained in an IOLTA account), this is to confirm that no such agreement exists. . . . G.L. c.30B, the Uniform Procurement Act, specifically exempts legal services from its provisions. See G.L. c.30B, §1(a), which states that it applies to “every” contract for the procurement of supplies, services or real property and for disposing of supplies or real property by a governmental body as defined herein,” and then specifically clarifies, G.L. c.30B, §1(b)(15) that the chapter does not apply to “contracts with labor relations representatives, lawyers, or certified public accountants.”

Susan Audette SPR21/2715 Page 3 October 26, 2021 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). In two phone conversations between a staff attorney of the Public Records Division and an attorney for the Town on September 14, 2021, and again on October 21, 2021, the Town confirmed that copies of bills previously provided, and the February 26th letter, are the only records responsive to the request. The Town further confirmed that it has no written agreement with the law firm. Conclusion Where the Town confirmed that it does not possess additional records responsive to Ms. McKee’s request, I will now consider this administrative appeal closed. If Ms. McKee 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Sarah McKee