Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20242480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2024 SPR24/2480 Angela Jack Town Clerk Town of Ashby 895 Main Street Ashby, MA 01431 Dear Ms. Jack: I have received the petition of Patrick McPhee appealing the response of 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 August 8, 2024, Mr. McPhee requested, “the contract between Town of Ashby and the Broker for Health care AleraGroup/Lively broker services.” The Town provided a response on August 10, 2024. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and this appeal, SPR24/2480, 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. Att’y 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. 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 Jack SPR24/2480 Page 2 September 13, 2024 The Town’s August 10th Response In its August 10, 2024 response, the Town stated, “[t]here is no contract and no fees are charged to the Town for AleraGroup/Lively broker services.” Current Appeal In his appeal to this office, Mr. McPhee states, “prior select board member show me there was contracts. per the insurance commission the amount is over $10k. there should also be RFP ‘Bids under chapter 30’, please send me the link.” In a telephone call between a staff attorney of the Public Records Division and the Town on September 12, 2024, the Town confirmed that there are no records responsive to the request. No Duty to Create Records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Where the Town confirmed that it does not possess records responsive to Mr. McPhee’s request, I will now consider this administrative appeal closed. If Mr. McPhee is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee