Joseph Dwinell v. Somerville, City of - City Solicitor (SPR 20180662)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 23, 2018 SPR18/662 David Shapiro, Esq. Assistant City Solicitor City of Somerville - City Solicitor 93 Highland A venue Somerville, MA 0214 3 Dear Attorney Shapiro: I have received the petition of Joe Dwinell of the Boston Herald, appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on April 18, 2018, Mr. Dwinell requested "[t]he entire public payroll for [the City's] community for calendar year 2017 listing every full- and part-time employee -- including fire, police, school, public works, central offices, and/or any city office, including their: First, Last name and middle initial; Job Title and department, Base salary, Gross salary for 2017; [and] Other (settlements or buyouts; overtime and detail pay if available)." The City provided its first response, which included responsive records in redacted form. The City indicated that it redacted portions of the records pursuant to Exemption (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the City's response, Mr. Dwinell petitioned this office and this appeal, SPRl 8/662, was opened as a result. While this appeal was pending, the City provided supplemental responses on May 15, 2018 and May 17, 2018. Petitions to the Supervisor of Records Mr. Dwinell is reminded that when appealing to the Supervisor of Records, the requestor shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses ... " 950 C.M.R. 32.08(1)(g). 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 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

David Shapiro, Esq. SPR18/662 Page 2 May 23, 2018 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. 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. The City's first, May 15th and 1fh responses In its initial response, the City indicates that it "redacted the names of two individuals pursuant to the privacy exemption of the public records law ([E]xemption c) and pursuant to G. L. c. 66, s. 10 ([E]xemption a), on the grounds that these individuals are included in categories protected from disclosure as set forth in G. L. c. 66, 1O ." In its May 15th and May 1? 1h supplemental responses, the City clarifies that upon further review it relies only upon G. L. c. 66, § 10( d) [sic] as it operates through Exemption ( a) of the Public Records Law and asserts that the referenced statute permits the City to redact the name of the individual. Exemption (a) The City claims G. L. c. 66, § 10( d) [sic] permits it redact the individual's name from responsive records as it operations through Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes

David Shapiro, Esq. SPR18/662 Page 3 May 23, 2018 records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: The home address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed, but such information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180 or to a criminal justice agency as defined in section 167 of chapter 6. The name and home address and telephone number of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. The home address and telephone number or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name and home address and telephone number, or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. G. L. c. 66, §lOB. Based on the City's response, it is unclear how the above statute allows the City to withhold or redact the responsive category of information at issue from the records. As a result, I find the City has not met its burden to redact the individual's name under Exemption (a) of the Public Records Law. I understand a Public Records Division staff attorney contacted your office about this appeal.

David Shapiro, Esq. SPR18/662 Page 4 May 23, 2018 Conclusion Given that the City has not met its burden to explain how Exemption (a) permits it to redact the individual's name from the responsive records, the individual's name may not be withheld. Accordingly, the City is ordered to provide Mr. Dwinell with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten.business days. 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. The City may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe Dwinell