Thomas T. Henry v. Ashland, Town of - Town Manager (SPR 20230485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2023 SPR23/0485 Michael D. Herbert Town Manager Town of Ashland 101 Main Street Ashland, MA 01721 Dear Mr. Herbert: I have received the petition of Thomas T. Henry, Esq., of Krakow, Souris & Landry, LLC, on behalf of their client Timothy Craw, of the North Atlantic States Regional Council of Carpenters (NASRCC), appealing the response of the Town of Ashland (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 30, 2023, Mr. Craw requested copies “…of the [c]omunications between the [Town], any of its employees, committees, volunteers, vendors, sub-contractors and CTA Construction Managers/CTA Construction regarding schedule delays, liquidated damages, fines and non-payment of sub- contracts or wages from the start to present for the above referenced project.” In an email on February 13, 2023, the Town provided a response, including certain responsive records. Unsatisfied with the Town’s response, Attorney Henry petitioned this office and this appeal, SPR23/0485, 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 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

Michael Herbert SPR23/0485 Page 2 March 24, 2023 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 his appeal petition, Attorney Henry states, “I am writing to appeal the failure of the [Town] to provide requested documents, or provide a response explaining the legal basis for not producing the requested documents, within 10 calendar days.” In addition, Attorney Henry states, “[o]n February 13, 2023, Mr. Herbert [the Town Manager] provided Mr. Craw with a copy of a sub-contracting agreement (Sub-Contracting Agreement) between CTA Construction Managers, LLC and Door Systems, Inc. as well as a brief email chain between the [Town], Vertex Engineering, and CTA Construction Managers, LLC. . . . Mr. Herbert’s response to Mr. Craw’s public records request is legally inadequate because not all responsive documents were provided.” Subsequent to the opening of this appeal, the Town provided a March 13, 2023 response to Mr. Craw indicating, “[o]f course, the [Town] will be responsive to the request received. The initial request would have entailed hundreds, if not thousands of documents, so I tried to narrow down the request and sent what we thought were the responsive documents after a phone call with the requestor. Without the courtesy of a reply though, it was difficult to tell if that was sufficient. Now that we have our answer, we can modify our response forthwith.” In a March 15th email, Attorney Henry states, “…[a]s you are aware, Mr. Craw previously granted [the Town] an extension to respond to his initial records request. But you did not provide all responsive documents by that date, nor did you request another extension. We must respectfully decline your request for an additional ten days just to assess how much further time you will need. We are entitled to an order requiring [the Town] to produce the documents because your response was legally inadequate under the MA [P]ublic [R]ecords [Law].” The Town is advised, G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days

Michael Herbert SPR23/0485 Page 3 March 24, 2023 following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Craw’s request was submitted on January 30, 2023, and the Town has not provided any additional responsive records pertaining to those referenced above, I find the Town has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Town must provide an estimated date as to when it intends to complete a search for the responsive records and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Town must provide responsive records on a rolling basis. Conclusion Accordingly, the Town is ordered to provide Mr. Craw 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: Thomas T. Henry, Esq.