Patrick Courtney v. University of Massachusetts - Lowell (SPR 20170383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 10, 2017 SPR17/383 Paulette Brooks Assistant to the Associate Vice Chancellor Financial Services University of Massachusetts at Lowell 600 Suffolk Street, Suite 415 Lowell, MA 01854-5112 Dear Ms. Brooks: I have received the petition of Patrick Courtney of The Foundation for Fair Contracting for Massachusetts appealing the response of the University of Massachusetts at Lowell (UMass) to a request for public records. G. L. c. 66 § IOA; see also 950 C.M.R. 32.08(1). Mr. Courtney requested an electronic copy of records regarding the UMass Falmouth Building Renovation Project - CL15HT0015, specifically: 1. Certified payroll records submitted by GTC Construction and all non-filed subcontractors to the general contractor (provide one week per month per contractor); · 2. The Massachusetts Division of Apprentice Training apprentice identification card for each apprentice on the payroll; 3. OSHA 10 certification per the Office of the Attorney General's 2008 Advisory; and 4. Complete minimum wage schedules, including any wage rate updates each year after the date of the award of the contract. On March 13, 2017, you provided Mr. Courtney with the responsive minimum wage schedules, the apprentice identification cards and proof of OSHA 10 certification. However, you informed Mr. Courtney, "UMass is exempt from the Public Records Law where the information is exempt from disclosure by statute. The addresses are protected from disclosure by the Fair Information Practices Act, G. L. c. 66A and as a holder of personal data, UMass would have to notify the individuals prior to releasing their addresses." You state that UMass would fulfill the request by printing the certified payrolls, redacting the personal information by hand and scanning the redacted pages before sending them to Mr. Courtney. You provided Mr. Courtney with a list of the seventeen (17) vendor names associated with the project, so that he could decide whether he wished to narrow his request. At that point, UMass would provide a written, good faith fee estimate. After consulting with the Office of the 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

Paulette Brooks SPRl 7/383 Page 2 April 10, 2017 Attorney General's Fair Labor Division and explaining to you that the names and addresses of the workers listed on the certified payroll records were not exempt under the Public Records Law, Mr. Courtney petitioned the Supervisor of Records for an appeal. Appeal to the Supervisor You informed a Public Records Division attorney that the Department did not receive a copy of Mr. Courtney's petition to the Supervisor of Records (Supervisor) requesting an administrative appeal. It is my understanding that a Public Records Division attorney provided you with a copy of the appeal file via email. Mr. Courtney is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(l)(h). 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, § lO(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. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff members will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. UMass is advised that all government entities enumerated in section 26 of chapter 4 of the Massachusetts General Laws are subject to the Public Records Law. G.L. c. 4, § 26.

Paulette Brooks SPRl 7/383 Page 3 April 10, 2017 However, the exemptions in the Public Records Law may allow a record custodian to withhold records or content within records that fall into one of the enumerated exemptions. See G. L. c. 4, § 7(26)(a-u). Moreover, under the new provisions of the Public Records Law, a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 CMR 32.06(4). UMass has neither petitioned the Supervisor of Records, nor is there any statutory mandate for the segregation and redaction of the names and addresses within the content of the certified payroll records. Therefore, UMass may not charge a fee for segregation or redaction of the records. Fair Information Practices Act (FIPA) FIPA imposes restrictions on the dissemination of "personal data." G. L. c. 66A, § 2(c ). "Personal data" is defined to include: any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, .that such information is not contained in a public record, as defined in clause Twenty-sixth of section seven of chapter four and shall not include intelligence information, evaluative information or criminal offender record information as defined in section one hundred and sixty-seven of chapter SlX. G. L. C. 66A, §1. The definition of "personal data" contained in FIP A expressly excludes information contained in a public record. G. L. c. 66A, § 1. FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A cannot provide a basis for withholding the names and addresses of the subjects of the certified payroll records because those records are public by statute. Certified Payroll Records The law regarding the requirements to file certified payroll records for every publically funded construction project falls under G. L. c. 149, § 27B. Section 27B provides in pertinent part: Every contractor, subcontractor or public body engaged in said public works to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee ... [S]uch records shall be open to inspection ...

Paulette Brooks SPR17/383 Page 4 April 10, 2017 G. L. c. 149, § 27B (Emphasis added). Whereas certified payroll records are to be available for public inspection, the statute does not limit disclosure but rather evidences a legislative intent to ensure that these records are publicly available. Likewise, the statute indicates legislative purpose to make the information that this required to be provided by a contractor to the awarding authority open to public inspection. In a 2002 Superior Court case, a construction company hired for a public construction project for the Massachusetts Water Resources Authority (MWRA) sought injunctive relief by asserting a privacy claim under Exemption ( c) of the Public Records Law to prevent disclosure of the addresses and telephone numbers of the workers listed on the certified payroll records after the Supervisor of Records issued an order to the MWRA to disclosure the records to the requesting party. See D' Amico, Inc., et. al. v. MWRA, C.A. NO. 02-0369-A (2002). In his April 29, 2002 finding, Judge Thomas Conley denied the plaintiffs motion for a preliminary injunction, stating, "[T]here is very little likelihood, if any, of the plaintiff prevailing in this matter, and there has been no showing of irreparable harm." Given that the names and addresses of the workers who are the subjects of the certified payroll are public, UMass may not withhold this information under FIP A or any of the exemptions enumerated in the Public Records Law. Order Accordingly, I find that UMass cannot redact the names and addresses of the subjects of the certified payroll records, as this information is required under G. L. c. 149, § 27B; however, UMass may redact any social security numbers that are listed on the records. See G. L. c 149, § 27B; see also G. L. c. 4, § 7(26)(c). UMass is hereby ordered to provide Mr. Courtney with copies of the certified payroll records with all information contained in the records, except any Social Security Numbers that may be redacted from the records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any cover letter or response that accompanies the records 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.

Paulette Brooks SPRl 7/383 Page 5 April 10, 2017 Sincerely, ~ --v fht1AM/LLl-- Rebecca S. Murra~·--..... - Supervisor of Records cc: Patrick Courtney