Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20222525)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2022 SPR22/2525 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]ny/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 SPR22/2364 Determination of the Supervisor of Records (October 31, 2022). The Town responded on November 1, 2022, indicating there were no additional records responsive to the request. Claiming responsive records exist, Mr. McPhee petitioned this office, and appeal SPR22/2525 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 SPR22/2525 Page 2 November 17, 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 November 1st Response In its November 1, 2022 response, the Town stated, “[p]lease be advised that the Town has no further documents responsive to your request.” Current Appeal In his appeal, Mr. McPhee states: It is difficult to understand how the Town thinks there is no more records. 1. The Town states “Town has no further documents responsive to your request”, but after reviewing the recording (https://vimeo.com/746366338) the town received documents, communication, text and email from people who could or could not attend. The BoS chair commented in the meeting. a. Communication to [named individual] from 873 Cafe, he was running late b. Warrant emailed and will be in draw, for signing c. DOR received request documents be signed, will be put in draw for signing d. Also [named individual] presented the Power point emailed from the Fire Chief, this was not provided (3 minutes and 52 seconds) into the meeting[.] 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). In light of the issues raised in Mr. McPhee’s appeal regarding the existence of responsive records, I find it is unclear whether responsive records exist, and if they do, why they have not been provided. The Town must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). 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

Angela Jack SPR22/2525 Page 3 November 17, 2022 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