Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20230062)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2023 SPR23/0062 Angela Jack Town Clerk Town of Ashby 895 Main Street Ashby, MA 01431 Dear Ms. Jack: 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 7 PM. 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 7 PM. Prior Appeals 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. In its November 17, 2022 email from the Town Administrator to this office and copied to Mr. McPhee, the Town asserted, “…[n]o meeting packet was prepared for the Board for [the October 18, 2022] meeting, 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 SPR23/0062 Page 2 February 9, 2023 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. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and appeal, SPR22/2920 was opened as a result. In Mr. McPhee’s December 20, 2022 petition, he asserts, “[p]lease the sec of state, I wish to appeal this, for 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.” In my January 5, 2023 determination of appeal, SPR22/2920, I found it is unclear whether the Town possesses additional records. Particularly, the Town must clarify whether it possesses any additional emails and attachments, and finance documents, that may be responsive to Mr. McPhee’s request for records of the October 18, 2022 meeting of the Public Safety Committee and Board of Selectman. Subsequently, the Town provided a response on January 11, 2023. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and this appeal, SPR23/0062, 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) (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.

Angela Jack SPR23/0062 Page 3 February 9, 2023 The Town’s January 11th response In its January 11, 2023 response, the Town provided additional records and stated, “[a]fter further review, I have determined that the attached documents from the October 18, 2022 joint meeting with the Selectboard, are the only remaining documents responsive to this request (SPR22/2920). . .” Current Appeal In a January 11, 2023 email to this Office, Mr. McPhee asserts, “[h]i Jill, these are more email[s] I didn’t know about, thank you. My request has not chan[ged], but [you’re] providing more than I knew about. Please expand the original screen [from October 18, 2022] showing email from the Town [c]ontractor and attachments. . . . [N]one of these have been presented. Also[,] there is NO Town Account Finance reports provided. I appealed this record request SPR22-2522, back on November 18, 2022…for emails and documents and finance screens was provide then showing Town [c]ontractors present[ing] emails with [the Board of Selectmen] and [the Town Administrator] included. On December 20, 2022 4:37:23 PM SPR22-2522, I pointed out the [f]inance [d]ocuments in this request, was a Town Accountant contractor.” Mr. McPhee further asserts in his appeal petition, “I need to appeal again, the [T]own is still not providing me emails and the Town Accountant finance documents…I don’t believe they haven’t even asked their contractors.” Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” In this case, Mr. McPhee has not provided the Town with sufficient particularity required for the Town to identify the finance documents he is seeking. Mr. McPhee may wish to provide clarification regarding the specific records he is seeking. Once Mr. McPhee has provided the needed clarification, the Town must provide a response within 10 business days. Conclusion Accordingly, I will consider this administrative appeal closed.

Angela Jack SPR23/0062 Page 4 February 9, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Patrick D. McPhee