Patrick D. McPhee v. Ashby, Town of - Board of Selectmen (SPR 20230098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2023 SPR23/0098 Angela M. Jack Town Clerk Record Access Officer Town of Ashby 895 Main Street, Box 4 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 December 18, 2022, Mr. McPhee requested the following: 1. ... any/all information, the Town of Ashby Select Board receives for the meeting on December 9, 2022. a. Part of this is referred to meeting package provided by the Town of Ashby Administrator to Town of Ashby Select Board b. ... also including emails (sent/received), attachments, text send/received that the Town of Ashby Select Board receives or uses for meeting on December 9, 2022 1. Please include both Private emails including Select Board private work emails. 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. 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 M. Jack SPR23/0098 Page 2 February 1, 2023 Att’y 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. Current Appeal In his appeal petition, Mr. McPhee contends that “December 9 2022, may have been a executive session, the issues has been resolved, the town is not showing the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record.” The Town’s January 17th Response In its January 17, 2023 response, the Town states that “the minutes of the 12/9/2022 Executive Session have not been released because the issue has not been resolved. Once the issue has been resolved, the minutes will be reviewed and approved in a Selectboard meeting and released.” The Town’s response and Mr. McPhee’s appeal petition raise issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the AGO for a determination on the status of the executive session minutes. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee