Vaccaro, Adam v. Boston, City of - Mayor's Office (SPR 20150743)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 22, 2015 SPRlS/743 Ms. Caroline Driscoll, Esq. Senior Assistant Corporation Counsel City of Boston - Law Department City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Adam Vaccaro of Boston. com appealing the response of the City of Boston (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Vaccaro requested copies records shared by transportation Technology Company Uber with the City dating back to January, 2015, as part of a municipal data-sharing agreement struck between the company and the City in January. In response, the Press Office of the Mayor denied this request in its entirety citing Exemption (g). G. L. c. 4, § 7 (26) (g). Other than a brief description regarding the exemption, the City offered no further substantive explanation to support its use of Exemption (g) to withhold the responsive records. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Caroline Driscoll, Esq. SPR15/743 Page Two December 22, 2015 Exemption (g) trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subclause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, §7 (26)(g) To properly claim Exemption (g), a custodian must meet all six criteria contained in the exemption: (1) trade secrets or commercial or financial information; (2) voluntarily provided to a government entity; (3) for use in developing government policy; (4) upon an assurance of confidentiality; (5) information not submitted by law; and (6) information not submitted as a condition of receiving a governmental benefit. The response by the City did not contain the specificity required in a denial of access to public records. Although the response cites some of the statutory language for Exemption (g), the City has not explained, with specificity, how each of the elements applies to the responsive records. For example, the City does not explain what type of governmental policy is being developed, nor whether the information was submitted as a condition of receiving a governmental benefit. In addition, it is unclear what type of records are responsive to the request. Although you did not provide the City's initial response, I understand you discussed this appeal and the applicability of Exemption (g) with an attorney on my staff. As a result, the City failed to meet its burden of explaining with specificity how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, whereas the City has not overcome the presumption that the requested records are public, the City is hereby ordered, within ten (1 0) days, to provide Mr. Vaccaro with the requested records. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Vaccaro a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Ms. Caroline Driscoll, Esq. SPR15/743 Page Three December 22, 2015 If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. cc: Mr. Adam Vaccaro