Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20222920)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2023 SPR22/2920 Christine Lindberg Town Administrator Town of Ashby 895 Main Street Ashby, MA 01431 Dear Ms. Lindberg: I have received the petition of Patrick D. 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. Prior Appeal 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.” As a result of the November 1st response, Mr. McPhee petitioned the Supervisor of Records, and the prior appeal was opened. Based on the issues raised in Mr. McPhee’s petition, I found that it was unclear if the Town possessed any records responsive to the request. Specifically, I ordered the Town to 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 Departments responsive to Mr. McPhee’s request. See SPR22/2522 Determination of the Supervisor of Records (November 16, 2022). Subsequently, the Town provided a response on November 17, 2022. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and this appeal, SPR22/2920, was opened as a result. 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 SPR22/2920 Page 2 January 5, 2023 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 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. Current Appeal In a November 17, 2022 email from the Town Administrator to this office and copied to Mr. McPhee, the Town asserted, “[p]lease be advised the Select [B]oard posted a meeting notice so that 2 members of that Board could attend the meeting of the Public Safety Building Committee to observe. We always post the agenda with a votes may be taken caveat in case an issue arises during the meeting. No meeting packet was prepared for the Board for [the October 18, 2022] meeting, as the Board was attending a meeting already posted by another committee.” In addition, the Town sought clarification on whether Mr. McPhee is requesting records provided to the Public Safety Building Committee. Current appeal In his appeal petition, Mr. McPhee states “…the [T]own has not responded in over 15 days, [therefore] the records are to be given. The Finance [d]ocuments in this request, the Town Accountant contractor MELANSON, PC agent said in a public meeting, it is just a push of the button, just need to ask. The Town never asked her! Also, the [e]mails are maintained by a contractor Suzor IT agent.” Possession, Custody, or Control The duty to comply with requests for records extends to those records that exist and are in

Christine Lindberg SPR22/2920 Page 3 January 5, 2023 the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, 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). Based on the above claims, it is unclear whether the Town possesses additional records. Particularly, the Town must clarify whether it possesses any finance documents or emails that may be responsive to the request. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. Sch. Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. As such, I find that the Town must provide additional information detailing their search in order to determine if the Town has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. 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. Sincerely, Manza Arthur Supervisor of Records cc: Patrick D. McPhee