Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20222364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2022 SPR22/2364 Angela Jack Records Access Officer Town of Ashby Office of the Town Clerk 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). On September 22, 2022, Mr. McPhee requested: [A] any/all information, the Town of Ashby Administrator sends to the Town of Ashby SelectBoard for the meeting on Aug 31, 2022 7PM … including but not limited to the emails (sent/received), attachments and the Town of Ashby sends to the board pertaining to Town of Ashby SelectBoard meeting on Aug 31, 2022 7PM[.] Prior Appeal This request was the subject of a previous appeal. See SPR22/2275 Determination of the Supervisor of Records (October 14, 2022). The Town responded on October 11, 2022. Unsatisfied with the response, Mr. McPhee petitioned this office and this appeal, SPR22/2364, 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, § l0A(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). 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 SPR22/2364 Page 2 October 31, 2022 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. The Town’s October 11th Response In its October 11th response, the Town stated, “[a]ttached please find the documents provided to the SB in conjunction with their meeting on 8/31/22.” Current Appeal In his appeal, Mr. McPhee states, “[m]y request was dated September 22, 2022 … they are not providing emails … the Town Legal, Town Account, Town Admin and other departments send emails pertaining to Town SelectBoard meeting on Aug 31, 2022.” In light of Mr. McPhee’s claim, it is unclear if the Town possesses additional records responsive to the request. 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). To the extent that additional records exist, they must be provided in a manner consistent with the Public Records Law. G. L. c. 66, § 10(b). Conclusion Accordingly, the Town is ordered to provide Mr. McPhee with a response to the request, provided 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, Manza Arthur Supervisor of Records cc: Patrick McPhee