Patrick D. McPhee v. Ashby, Town of - Town Administrator (SPR 20222522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2022 SPR22/2522 Christine Lindberg Town Administrator Town of Ashby 895 Main Street Ashby, MA 01431 Dear Ms. Lindberg: I have received the petition of Patrick McPhee appealing the response of the Town of Ashby (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 19, 2022, Mr. McPhee requested: [A]ny/all information, the [Town] Administrator and/or the Public [S]afety Committee sends to the [Town’s] Select Board for the meeting/during the meeting on October 18, 2022 7PM. Part of this is referred to meeting package provided by the [Town] Administrator to [the] Select Board, but please also including but not limited to the emails (sent/received), attachments and the [Town] sends to the board pertaining to [the Town’s] Select Board meeting on October 18, 2022 7PM. On November 1, 2022, the Town responded. As a result of the response, on November 6, 2022, Mr. McPhee petitioned the Supervisor of Records and this 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 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Christine Lindberg SPR22/2522 Page 2 November 16, 2022 to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 November 1st response In its November 1, 2022 response, the Town states, “[p]lease be advised that [the Town Administrator’s] office has no records responsive to [Mr. McPhee’s] request.” In his November 6th petition, Mr. McPhee asserts, “…Ms. Lindberg is incorrect regarding the [T]own having records, after reviewing the recording to see 3 plus emails and documents for that meeting with [an identified individual’s email address] was present. Also discussions of back and for the emails for that meeting! https://vimeo.com/763586161.” In light of Mr. McPhee’s claim, it is unclear if the Town possesses any records responsive to Mr. McPhee’s request. Specifically, the Town must clarify whether there are records in the possession of the Town’s Board of Selectmen, the Public Safety Committee or any of the Town’s Department responsive to Mr. McPhee’s request. The Town has only indicated that the Town Administrator’s Office has no responsive records; however, it remains uncertain whether a search was conducted of the other Town’s Departments and/or Committees. 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 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). While the Town responded that the records are not in the possession of the Town Administrator’s Office, the Town must use its superior knowledge of the records, and forward the request to the appropriate Department(s) and/or records access officers within the Town that may have possession, custody, or control of the records. The Town must clarify these issues. Conclusion Accordingly, the Town is ordered to provide Mr. McPhee with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Christine Lindberg SPR22/2522 Page 3 November 16, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee