David Bixby v. Chatham, Town of (SPR 20191029)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 5, 2019 SPR19/1029 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 on April 22, 2019. The Town provided a supplemental response to Mr. Bixby on May 14, 2019. Mr. Bixby appealed the May 14th response by the Town to this office. 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. G. L. c. 66, § 1 O(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 SPR19/1029 Page 2 June 5, 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 ofreceiving a governmental contract or benefit. Appeal In the Town's May 14th Exemption (g) claim response, the Town asserts that the documents "were voluntarily provided by a private commercial enterprise (the Airport Manager) to a government entity (the Town of Chatham Airport Commission)." The Town further asserts that the documents "have been submitted to the Airport Commission and are to be used for the purposes of policy development by the Airport Commission/Town as specified and stipulated in Section 9.25 Financial Review of the Airport Management Services Agreement." The Town also explains that requested documents were provided with the expectation of confidentially, the records are not required by law to be provided by the Town, and the documents were not submitted as a condition of receiving a governmental contract or benefit. Mr. Bixby in his May 23rd appeal claims that the "Airport Management Agreement requires Cape Cod Flying Circus to provide IRS Form 1120 annually to the Airport Commission and Town Manager" thus making it not voluntary. Mr. Bixby further says that there has been no

Terence M. Whalen, AICP SPR19/1029 Page 3 June 5, 2019 explanation from the Town regarding policy development being involved with the documents. Also, Mr. Bixby points out in his appeal that there are issues in the Town's response involving confidentiality, the explanation that documents are not required by law, and that the documents were not submitted as a condition of receiving a governmental contract or benefit. Despite the Town's May 14th response letter, it is unclear how the information was not submitted as a condition of receiving a government contract or benefit, the documents were not submitted voluntarily or are required by law, and how the records involve policy development. Therefore I find based on the Town's response, it is unclear whether the responsive records can be withheld under Exemption (g). As a result, the Town needs to provide further clarification. See G. L. c. 66, § lO(b )(iv). 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