George J. Rotondo v. Revere, City of - Office of the City Clerk (SPR 20170239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 27, 2017 SPR17/239 Ashley E. Melnik Office of the City Clerk City of Revere 281 Broadway Revere, MA 02151 Dear Ms. Melnik: I have received the petition of George Rotondo appealing the response of the City of Revere (City) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Rotondo requested information relating to the names of companies in negotiations with the City for a cable contract. In a February 21, 2017 response you denied his request under Exemption (g) of the Public Records Law. 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, § lOA(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 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, § 1O (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. Exemption (g) Exemption (g) applies to: trade secrets or commercial or financial information voluntarily provided to an 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

Ashley E. Melnik SPRl 7/239 Page 2 February 27, 2017 agency for use in developing governmental policy and upon a promise of confidentiality; but this sub-clause shall not apply to information submitted as required by law or as a condition ofr eceiving a governmental contract or other benefit G. L. C. 4, § 7 (26)(g) As explained by a member ofmy staff in a discussion with you on February 27, 2017, a custodian must meet all of the following six ( 6) 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 provided by law, and ( 6) Information not submitted as a condition of receiving a governmental contract or benefit It is unclear whether any responsive records have been provided as "a condition of receiving a governmental contract," therefore I find the City has not established the six criteria to establish the applicability of Exemption (g) to the requested records. Determination Subsequent to the intervention by a member of my staff, you agreed to provide a supplemental response to Mr. Rotondo' s request. I will therefore consider this administrative appeal closed with the proviso that this response is provided without delay. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: George Rotondo