Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20222653)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 23, 2022 SPR22/2653 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 28, 2022, Mr. McPhee requested: [1] … information the Town administrator sent to the Town Select Board for the meeting on September 28, 2022 at 7pm. [2] … information discussed in public comment about the 30b bids or bids for the account 24-3-236 item 004 and 005 for Highway office space and Well/Septic use of ARPA fund over $61k. Prior Appeal This request was the subject of a previous appeal. See SPR22/2316 Determination of the Supervisor of Records (October 28, 2022). The Town responded on November 16, 2022. Unsatisfied with the response, Mr. McPhee petitioned this office and this appeal, SPR22/2653, 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 SPR22/2653 Page 2 November 23, 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 16th Response In its November 16, 2022 response, the Town stated: I am in receipt of your request for records from the SB meeting on September 28, 2022. Attached is the meeting packet you requested. Regarding your request for documents relating to bids for work done at the Highway garage, please be advised that the Town has no further documents responsive to your request. Current Appeal In his appeal, Mr. McPhee states, “[i]t is difficult to understand how a town bill gets paid by the Town if they ‘has no further document’? In the ARPA funds it shows paid out of $66,332.00[.]” Based on Mr. McPhee’s appeal and the Town’s response, it is unclear if the Town possesses any 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). As a result, I find the Town must clarify whether additional records exist that are responsive to the request. 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.

Angela Jack SPR22/2653 Page 3 November 23, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee