Jon Petree v. Water and Sewer Commission (SPR 20160141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 10, 2016 SPR16/141 Ms. Dolores Randolph Deputy Director of Communications Boston Water and Sewer Commission 980 Harrison A venue Boston, MA 02119-2540 Dear Ms. Richardson: I have received the petition of Mr. Jon Petree appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Petree requested copies of certain water bills. Over the course of several emails the Commission denied his request, claiming that the responsive records are exempt citing the privacy exemption of the Public Records Law, G. L. c. 4, § 7(26)(c). The basis of Mr. Petree's appeal is the Commission's use of Exemption (c) for the withholding of 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, § 10(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). 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, § 1 0( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Commission did not contain the specificity required in a denial of access to public records. Accordingly, the Commission is advised that to comply with the Public Records Law and Regulations it must OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Delores Randolph SPR16/141 Page 2 March 10,2016 provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. In a letter dated March 9 to the Public Records Division you confirmed that the Commission will be providing a proper response to Mr. Petree. Whereas this matter was opened based upon the Department's failure to properly respond, I will now consider this administrative appeal closed with the proviso that the response be provided within ten (10) days of this determination. Mr. Petree may appeal the substantive nature of the Commission's response within ninety (90) days. See 950 C.M.R. 32.08(2). To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this dete ination for fi rther information. cc: Mr. Jon Petree