Frank Wood v. Ashland, Town of - Office of the Town Clerk (SPR 20220993)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 9, 2022 SPR22/0993 Cindy Livingstone Town Clerk Town of Ashland 101 Main Street Ashland, MA 01721 Dear Ms. Livingstone: I have received the petition of Frank Wood 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). On April 27, 2022, Mr. Wood requested “all emails in” a named individual’s personal mailbox “between 1/1/2022-4/27/2022” and provided specific search terms. The Town responded on April 28, 2022, indicating it has no responsive records. Unsatisfied with the Town’s response, Mr. Wood 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 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. Att’y 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. 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 SPR22/0993 Page 2 May 9, 2022 Current Appeal In his appeal petition, Mr. Wood contends that the individual’s personal email account has been used for town business. The Town’s Response In its April 28, 2022 response, the Town states that “there are no records responsive to [Mr. Wood’s] request.” Please be advised that 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, 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 a letter to this office and Mr. Wood on May 6, 2022, an attorney for the Town indicates that the Town Clerk contacted the individual whose emails were requested, and confirmed that the email address specified in Mr. Wood’s request had not been used for approximately four years. The Town further explains that “in a good faith effort to comply with Mr. Wood’s request, [the individual] searched through his current personal email account, but found no responsive records.” Conclusion Where the Town has confirmed that it does not possess records responsive to Mr. Wood’s request, I will now consider this administrative appeal closed. If Mr. Wood 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: Frank Wood