David Bixby v. Chatham, Town of (SPR 20191253)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supe111isor of Records July 8, 2019 SPR19/1253 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, § 1O A; 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 111 supplemental response to Mr. Bixby on May 14, 2019. Mr. Bixby appealed the May 14 response by the Town to this office. On June 20, 2019, the Town provided another supplement response to Mr. Bixby which he currently is appealing 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, § lO(b)(iv). One Ashbmion 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 SPR19/1253 Page 2 July 8, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 govermnental contract or benefit. Appeal 111 In the Town's June 20 response, the Town asserts that the documents "requested in the PRR was never considered by the Chatham Airport Commission as a condition of approval of the AMSA either during the public meeting discussions of the Commission nor as a condition of the motion to approve the AMSA." The Town further asserts that "Section 9.25 (Financial Review) of the AMSA provides that the subject information is be provided by the Airport Manager annually during the agreement term as a contractor reporting requirement, premised upon the assurance of confidentially of said information, and not as a condition of contract receipt or approval." The Town also explains "the requested documents were not provided to the Commission as a condition of receiving a governmental contract or benefit; they were provided as an operational requirement upon negotiation and voluntary agreement of the paiiies, as memorialized in the AMSA and are, thus, not required to be provided by law or as a condition of receiving a govermnental contract or other benefit."

Terence M. Whalen, AICP SPR19/1253 Page 3 July 8, 2019 The Town goes on to state that the provisions of AMSA Section 9.25 were provided for policy development. The provision "intended use of the information by the Airport Commission and to assure that the identified materials would not be released prematurely to avoid tainting any future deliberative processes related to operational, management and/or safety considerations to be discussed by the Airport Commission in the course of carrying out its responsibilities." Mr. Bixby in his appeal claims that the "records may have been voluntarily provided by CCFC but they are nevertheless a requirement of a government contract." Mr. Bixby further says that "[p] roviding the tax records are not optional under the contract. Lack of due diligence on the part of the Town when entering into a contract does not excuse the Town from complying with public records law." Also, Mr. Bixby notes in his appeal that "there there has been no evidence presented by the Town to explain the intended policy development." In camera inspection Despite the Town's June 20th response letter, it is still 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. In order to facilitate a determination as to the applicability of the Exemption (g) claim made by the Town to withhold portions of the responsive records, I request that the Town provide this office an un-redacted copy of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. 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. Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). 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 ofreview. 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. See 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 ce1iainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Terence M. Whalen, AICP SPR19/1253 Page 4 July 8, 2019 Order Accordingly, the Town is ordered to provide this office with an Un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Munay Supervisor of Records cc: David Bixby