Stephen J. Morgan v. Ashland, Town of - Office of the Town Clerk (SPR 20232193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2023 SPR23/2193 Cindy Livingstone Town Clerk Town of Ashland 101 Main Street Ashland, MA 01721 Dear Ms. Livingstone: I have received the petition of Stephen J. Morgan, appealing the response of the Town of Ashland (Town) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 27, 2023, Mr. Morgan requested records related to a specific project’s permission “…to operate construction noise on a Sunday.” The Town provided a response on September 11, 2023. Unsatisfied with the response, Mr. Morgan petitioned this office and this appeal, SPR23/2193, 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); 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). 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, Mr. Morgan states that “… [the] email which [he] was informed of by 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

Cindy Livingstone SPR23/2193 Page 2 September 27, 2023 police was not attached and only [an] email exchange a couple days later was.” The Town’s September 11th response In its September 11, 2023 response, the Town provided Mr. Morgan with an email that was responsive to his request. Unclear if additional records exist Although the Town provided Mr. Morgan with a record, based on his appeal, it is unclear if the Town possesses additional records 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). 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. Morgan with a response to the request, provided 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: Stephen J. Morgan