David Bixby v. Chatham, Town of (SPR 20190817)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 2, 2019 SPR19/0817 Terence M. Whalen, AICP Principal Projects and Operations Administrator Town of Chatham 221 Crowell Road Chatham, MA 02633 Dear Mr. Whalen: I have received the petition of David Bixby appealing the response of the Town of Chatham (Town) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bixby requested records regarding "annual profit and loss statements and IRS Form 1120." The Town provided Mr. Bixby with a response on April 3, 2019 citing Exemption (g) of the Public Records Law. G. L. c. 4, § 7(26)(g). Unsatisfied with the Town's response, Mr. Bixby appealed to this office asking for "for copies of the financial documents provided the Commission and Town Manager as a condition of the Manager's contract to use the airport." Tlte 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 a order to withhold 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. G. L. c. 66, § 1O (b )(iv). 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

Terence M. Whalen, AICP SPR19/0817 Page 2 May 2, 2019 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. Exemption (g) The Town indicated that it withheld responsive records pursuant to Exemption (g) of the Public Records Law. Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. C. 4, § 7 (26)(g). For this exemption to apply to withhold a record, 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. Appeal In the Town's April 3rd response it explained that the annual profit and loss statements and IRS Form 1120 are "being withheld from disclosure as confidential proprietary materials." The Town states that withholding the documents under Exemption (g) is "consistent with the six criteria outlined to claim this exemption as noted in the Secretary of State's document A Guide to the Massachusetts Public Record Law." I find it is unclear how this information may be withheld under Exemption (g) as "confidential proprietary materials." The Town's April 3rd response to Mr. Bixby, does not address or explain any of the six (6) criteria contained in Exemption (g). As a result, the Town has not established how the withheld information is exempt in its entirety under Exemption (g).

Terence M. Whalen, AICP SPR19/0817 Page 3 May 2, 2019 Conclusion Accordingly, the Town is ordered to provide a response to Mr. Bixby, made in accordance with the Public Records Law, its Access Regulations and this order within 10 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Bixby