David Ehrens v. Dartmouth, Town of - Select Board Office (SPR 20232048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2023 SPR23/2048 Shawn MacInnes Town Administrator Town of Dartmouth 400 Slocum Road Dartmouth, MA 02747 Dear Mr. MacInnes: I have received the petition of David Ehrens appealing the response of the Town of Dartmouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 7, 2023, Mr. Ehrens stated, “I have been in contact with the Town’s Energy Manager, . . . about the sudden change from the energy aggregation program described in the July 10th Select Board meeting and the correction described in the July 31st Select Board meeting…Please explain how the change occurred and why Dartmouth is not making a better effort to move to renewables…” On August 7, 2023, the Town provided a response to Mr. Ehrens. Following receipt of the response, Mr. Ehrens emailed the Town stating, “…I am requesting ALL emails and email attachments to and from the Select Board from July 1st to the present involving the energy aggregation program…” In an August 15, 2023 response, the Town informed Mr. Ehrens, “[f]ollowing up on your request for information. There were no e-mails to the Select Board on the energy aggregation program after July 1st.” Unsatisfied with the responses from the Town, Mr. Ehrens petitioned the Supervisor of Records, and this appeal was opened. 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 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

Shawn MacInnes SPR23/2048 Page 2 September 13, 2023 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 his petition, Mr. Ehrens asserts the following: [d]espite numerous attempts to explain to the Town Manager that my question concerns the provenance of information on the rate change and communications related to the decision to announce it to the [T]own, the Town Manager insists on reframing my question as a general inquiry about energy plans.” As a result, Mr. Ehrens asserts, “[f]or this reason I dispute the status of the documents requested as non-existent. . . . There can be no doubt that the Select Board received new rates and a new PowerPoint from someone. There can be no doubt that the Select Board had discussions either internally or externally, and very likely via email, with the DPU, with an energy consultant, with a Town employee, with Constellation Energy, or with Good Energy – or all of the above – regarding the rate change. And yet, miraculously, there are no emails documenting any of these communications or the decision to announce the corrected rate change on July 31st. Unclear if additional records exist Based on the Town’s response, in conjunction with Mr. Ehrens’ appeal, it is unclear whether the Town possesses additional responds responsive to the request. 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a);

Shawn MacInnes SPR23/2048 Page 3 September 13, 2023 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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). Consequently, the Town must clarify whether additional records exist. Conclusion Accordingly, the Town is ordered to provide Mr. Ehrens with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: David Ehrens