Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20222912)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2023 SPR22/2912 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. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 8, 2022, Mr. McPhee requested, “…[a]ny/all information, the Town of Ashby Finance Committee received for the meeting on November 1, 2022…including emails (sent/received), attachments, text send/received that Town of Ashby Finance Committee receives or uses for meeting on November 1, 2022.” On December 15, 2022, the Town responded. On December 19, 2022, Mr. McPhee modified his request to include notes utilized in the meeting by Committee members and additional emails he claimed the Town did not produce. On December 19, 2022, the Town responded and provided a further response on December 20, 2022. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and this appeal, SPR22/2912, 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 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 SPR22/2912 Page 2 January 5, 2023 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. Current appeal In his current appeal, Mr. McPhee claims that the Town has not produced all responsive records to his request. The Town’s December 19th and December 20th responses In its December 19, 2022 response, the Town indicated that they had produced all responsive emails to Mr. McPhee’s request. Regarding the notes that Mr. McPhee requested, the Town claimed that the notes were withheld pursuant to Exemption (e) of the Public Records Law. See G. L. c. 4, § 7(26)(e). In its December 20, 2022 response, the Town provided a further explanation for withholding the requested notes under Exemption (e). No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Regarding the requested emails, where a Town representative confirmed in a telephone call with a Public Records Division staff attorney that all responsive emails have been provided, I find that the Town has met its burden in responding to this portion of Mr. McPhee’s request. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption.

Angela Jack SPR22/2912 Page 3 January 5, 2023 The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In its December 20, 2022 response, the Town explained that, “[a]t no time before, during or after the meeting on Nov 1st did [a named person] share her notes with anyone else on the committee. Her notes are not being maintained as part of the FinCom’s files…” In a telephone call to this office on January 4, 2023, the Office reiterated its arguments under Exemption (e). In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (e) claim made by the Town to withhold responsive records, the Town must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in

Angela Jack SPR22/2912 Page 4 January 5, 2023 camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee