Patrick D. McPhee v. Ashby, Town of - Office of the Town Clerk (SPR 20251093)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 2, 2025 SPR25/1093 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 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). April 22, 2025, Mr. McPhee requested, “any and all invoices from the Town, pertaining to Town property ID 012/009.0-0013-0000.0 [from] FY06 to FY16 [and] FY25 to present date.” The Town provided a response on April 22, 2025. Unsatisfied with the Town’s response, Mr. McPhee petitioned this office and this appeal, SPR25/1098, 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 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. See G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, 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

Angela Jack SPR25/1093 Page 2 May 2, 2025 records custodian must provide the responsive records. The Town’s April 22nd Response In its April 22, 2025 response, the Town stated, “[t]he town does not have copies of invoices prior to FY23 as the town was given permission to shred bills payable, see attached permission to shred form signed off on by the supervisor of records.” Additionally, the Town provided a signed Application for Destruction Permission form dated September 10, 2024. Current Appeal In his April 22, 2025 petition to this office, Mr. McPhee stated, “[t]he town gave me invoices from municipal payable. A total of 550 invoices from FY18. The town accounting is not my concern how they don’t separate them[.] I just want from 2006 to 2018.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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 Given that the requested records were permissibly destroyed and no longer exist, I will now consider this administrative appeal closed. Mr. McPhee is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Patrick McPhee