Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20240399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 22, 2024 SPR24/0399 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. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 6, 2024, Mr. McPhee referred to the “Town of Ashby Administrator Search Committee” and requested the following: [1.] please provide committee members notes taking during the interview (1st round) [2.] please provide committee members notes taking during the interview (2nd round). The Town responded on the same day, indicating that responsive records were previously provided. Unsatisfied with the Town’s response, Mr. McPhee appealed, and this case was opened as a result. Subsequent to the opening of this appeal, in multiple emails to Mr. McPhee and this office on February 14 and 15, 2024, the Town provided additional responsive records, and confirmed that it does not possess others. 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). 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 SPR24/0399 Page 2 February 22, 2024 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. 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, Mr. McPhee contends the following: I have spoken with a committee member. The committee member assures me these notes haven’t been requested by the RAO or the former committee chair! The committee member also said their records (emails, meeting notes, documents, etc) haven’t been requested for public record retention by the Town RAO. In multiple emails to this office subsequent to the opening of this appeal, Mr. McPhee reiterates his claim that additional records exist responsive to his request. The Town’s Responses In its February 6, 2024 response, the Town explains that “only [the Chair’s] notes were ever referenced in the meetings, and they have been provided to [Mr. McPhee] in an earlier email.” In its February 14, 2024 response, the Town provides Mr. McPhee with additional responsive records. In a second response on February 14, and again on February 15, 2024, the Town confirms that “the other 3 committee members have indicated ... that they do not have any relevant records.” Records in Existence; Possession, Custody, or Control Please be advised that 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). Further, 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). In a telephone conversation with this office on February 8, 2024, the Town confirmed that it does not possess any additional records responsive to Mr. McPhee’s request, other than those provided and described above.

Angela M. Jack SPR24/0399 Page 3 February 22, 2024 Conclusion Where the Town confirmed that it does not possess additional records responsive to Mr. McPhee’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee