Colman Herman v. Framingham, City of - Mayor's Office (SPR 20181347)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 24, 2018 SPRlS/1347 Richard Howarth City Accountant City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Howarth: I have received the petition of Colman Herman appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Mr. Herman requested hard copies and electronic copies ofrecords, specifically: 1. All expenses that Yvonne Spicer incurred in her capacity as mayor of the City of Framingham for the period January 1, 2018 to the present. This includes, but is not limited to the following: (a) Expense reports, including back-up receipts, (b) Credit card statements, including back-up receipts, ( c) Automobile expense records, (d) Any and all other records that document Mayor Spicer's expenses; and 2. The written employee reimbursement policy of the City of Framingham. The City provided Mr. Herman with the responsive records; however, the City did not claim an exemption for certain redactions. On September 1, 2018, Mr. Herman contacted the City by email, asking that the City provide the exemption used for the redactions. In a September 10, 2018 email, the City indicates, "[t]he redacted information falls under Exemption (c)-The Privacy Exemption; because the disclosure of the information surrounding some of the purchases may constitute an unwarranted invasion of personal privacy." After receiving your response, Mr. Herman petitioned the Supervisor of Records (Supervisor) stating, "Mr. Howarth's claim of exemption (c) fails because it lacks the specificity required by the public records law." As a result, this appeal was opened. 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

Richard Howarth SPR18/1347 Page2 September 24, 2018 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). Exemption (a) Initially, the City claimed the privacy clause of Exemption (c), because the information is personal in nature. However, the City asserts that the personal account information may also be withheld under G. L. c. 93H. This statute would operate through Exemption (a) of the Public Records Law. Exemption (a), lmown 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. 15 1, 54 (1979); Ottawa 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.

Richard Howarth SPR18/1347 Page 3 September 24, 2018 G. L. c. 93H provides in relevant part: "Personal information" a resident's first name and last name or first initial and last name in combination with any 1 or more of the following data elements that relate to such resident: ( c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident's financial account; provided, however, that "Personal information" shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public. G. L. c. 93H, § 1 (a)(iii)(c). I find that the City has now met its burden of specificity in withholding the redacted information. The City is advised in responding to public records requests under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. Conclusion Accordingly, given that the City has now met its burden in withholding personal account information under G. L. c. 93H as it operates through Exemption (a), I consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman