Patrick D. McPhee v. Ashby, Town of - Fire Department (SPR 20242296)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2024 SPR24/2296 Michael Bussell Fire Chief Town of Ashby Fire Department 1093 Main Street Ashby, MA 01431 Dear Chief Bussell: I have received the petition of Patrick McPhee appealing the response of the Ashby Fire Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 2, 2024, Mr. McPhee requested, “… a report exactly the same for the fiscal year July 1, 2023 and ends June 30, 2024.” Previous Appeal The request was the subject of a previous appeal. See SPR24/2170 Determination of the Supervisor of Records (August 13, 2024). In my August 13th determination, I learned that the Department provided Mr. McPhee with a response on August 9, 2024, including the responsive record.” Unsatisfied with the Department’s response, Mr. McPhee petitioned this office and this appeal, SPR24/2296, 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. See 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 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

Chief Michael Bussell SPR24/2296 Page 2 August 28, 2024 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. The Department’s August 9th response On August 9, 2024, the Department provided a response and stated, “[a]ttached is the report requested.” Current appeal In his appeal, Mr. McPhee stated, “[t]here appears to be questionable issues, like the same time stamp ‘12:00 AM’. Also gaps in calls like a road closed would be more than one logged dispatch call [a]nd no address is included. The prior reports and police have address included.” Unclear if additional records exist Although the Department has provided Mr. McPhee with the unredacted report, based on his appeal, it is unclear if the Department possesses any additional records responsive to Mr. McPhee’s request which would include the missing address or indicate if there are “more than one logged dispatch call.” 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 Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. McPhee 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. Mr. McPhee may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Chief Michael Bussell SPR24/2296 Page 3 August 28, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee