Joseph Dwinell v. Somerville, City of (SPR 20180938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 9,20 18 SPRl81938 David Shapiro, Esq. Assistant City Solicitor City of Somerville City Solicitor - 93 Highland Avenue Somerville, MA 02 143 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, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 18 ,201 8 , Mr. Dwinell requested "[tlhe entire public payroll for [the City's] community for calendar year 2017 listing every full- and part-time employee -- including fire, police, school, public worlts, central offices, and/or any city office, including their: First, Last name and middle initial; Job Title and department, Base salary, Gross salary for 20 17; [and] Other (settlements or buyouts; overtime and detail pay if available)." Previous appeal; reconsideration This request was the subject of a previous appeal and subsequent reconsideration. See SPR181662 Determinations of the Supervisor of Records (May 23,201 8 and June 21,201 8). In my June 21Std etermination, I indicated that the City's supplemental response must be provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the June 2 lStd etermination, the City provided a supplemental response on June 21'20 18. Unsatisfied with the City's response, Mr. Dwinell petitioned this office and this appeal, SPRl81938 was opened as a result. 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, 5 10A(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, 5 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 021 08 * (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

David Shapiro, Esq. Page 2 July 9,2018 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 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 June 21S' response In its June 2 1,201 8 response, the City indicates that the individual whose name was redacted from the records "is employed by the Somerville Police Department" and also notes that the salary information of the individual has already been provided to Mr. Dwinell. In the City's initial response, the City had claimed Exemption (a) to withhold responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are : specifically or by necessary implication exempted from disclosure by statute 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. 15 1, 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 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.

David Shapiro, Esq. Page 3 July 9,201 8 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. . . . 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. Based on the City's responses it is unclear if the City has met all the criteria in the statute to withhold the individual's name from disclosure. Particularly, the City has not demonstrated that it is ". . . a government agency which maintains records identifying such persons as falling within such categories . . ." In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the City to withhold the individual's name, the City should provide this office with un- redacted copies of responsive records demonstrating that it maintains such records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[oln doubtful questions an in camera inspection may be appropriate"). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (198 1) (administrative agency entitled deference in the interpretation of its own regulations).

David Shapiro, Esq. Page 4 July 9,2018 Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. & 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the City is hereby ordered to provide this office with un-redacted copies of the records within 15 business days of this determination. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe Dwinell