Gary Gannon v. Cambridge, City of - Office of the City Solicitor (SPR 20191666)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor ofR ecords August 29, 2019 SPR19/1666 Brian A. Schwartz, Esq. Assistant City Solicitor Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Attorney Schwartz: I have received the petition of Gary Gannon appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Gannon requested "[a]ny and all Fire Department Form-2's, Memorandums or correspondences (not limited to Fire Dept.) regarding myself, FF Gary J. Gannon, written on or after August 23, 2017." The City initially responded on May 2, 2019 by indicating it needed additional time to produce records. On May 23, 2019 the City provided certain records and denied access to others under Exemptions (a), (c), and (d) of the Public Records Laws as well as the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c)-(d). 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, § IOA(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. 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

Brian A. Schwartz, Esq. SPR19/1666 Page 2 August 29, 2019 Appeal The City provided several documents in its May 23rd response. The City also indicated "[t]he City has redacted one document containing bank account information to protect personal privacy based upon Exemption (c) under G.L. c. 4 § 7(26) and Exemption (a) based on G.L. c. 62C, §21 which exempts certain tax information from disclosure." The City further explained "[f]ive documents have been withheld pursuant to Exemption (d) of the Public Records law, as they pertain to internal policy deliberations. Five documents have been withheld and two documents have been redacted pursuant to Exemption ( c) of the Public Records law because they contain confidential personnel information." The City further notes that it withheld two emails under the attorney-client privilege" ... because they related to privileged and confidential attorney-client communications made for the purpose of facilitating the rendition of legal advice between Law Department attorneys and staff, and Cambridge Fire Department and staff as their clients." In his appeal petition Mr. Gannon references a specific provision of collective bargaining agreement that allows an employee to access his/her own personnel file. He explains that he sought the records through representatives of a union as well as the Fire Department but has been " ... denied access to these documents ...." Subsequent to the opening of this appeal the City submitted a supplemental response on August 26, 2019. In this response the City explains it provided 135 responsive documents and reiterates that withheld 10 documents under certain exemptions to the Public Records Law as well as 2 documents under the attorney-client privilege. You further contend that Mr. Gannon's appeal petition does not adequately describe the nature of his objections to the City's response. Upon review of the file, I find that the basis of Mr. Gannon's appeal is unclear; specifically, Mr. Gannon does not specify which of the withheld records he continues to seek, nor does he indicate why he believes the exemptions do not apply. Further, in light of his reference to a provision of a collective bargaining agreement, it is uncertain whether Mr. Gannon only seeks records that are within his personnel file. Mr. Gannon is reminded that all petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Accordingly, Mr. Gannon must describe his specific objections to the City's responses. Mr. Gannon may re-submit his appeal upon this clarification. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Gary Gannon