Michael Grassia v. Beverly, City of - (SPR 20191767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor ofR ecords September 12, 2019 SPR19/1767 Kevin Q. CotTidan, Esq. Assistant City Solicitor - Records Access Officer City of Beverly Office of the City Solicitor Beverly, MA 01905 Dear Attorney Corridan: I have received the petition of Michael Grassia appealing the response of the City of Beverly (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Grassia requested a copy of communications and logs relating to communications between certain named individuals from February 10 to March 4, 2019. Prior appeal The responsive records were the subject of a prior appeal. See SPRl 9/1299 Determination of the Supervisor of Records (Supervisor) (July 12, 2019). The City provided responses on March 26 and April 3, 2019. In its March 26th response, the City inf01med Mr. Grassia that it has no call logs and no log of in-person meetings. In my July detennination, I advised Mr. Grassia that the duty to comply with requests for information extends only to those records tliat exist and are. in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public· records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Where Mr. Grassia suggested in his June petition that the City may have detailed cell phone billing statements that could be responsive to his request for call logs, in my July determination I advised the City to provide a further response to explain whether it is in possession of detailed cell phone billing statements. In its April 3, 2019 response, the City informed Mr. Grassia that the records were put on a thumb-drive, and that some medical information and personal infonnation contained in the records was redacted under Exemption ( c) of the Public Records Law. The City did not charge Mr. Grassia any fees to provide the records. 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

Kevin Q. C01Tidan, Esq. SPR19/1767 Page2 September 12, 2019 . Mr. Grassia contended that he did not receive any text messages from School Committee member Kelly Ferretti's cell phone, and the records on her phone are different than the records of the same conversation on other School Committee members' phones. He also stated that he did not receive any corresponding text messages from Mayor Michael Cahill's phone. In my July determination, I encouraged the parties to communicate and work together to satisfy Mr. Grassia's request and address any modifications to the request. Current appeal The City provided a July 25, 2019 response to my July 12th detennination. The City explained that the March request was sent to the people identified in Mr. Grassia's request and any individual that might have responsive documents. Both the City and the School Informational Technology Department searched for and retrieved responsive emails. You stated, "[a]ll individuals named in [Mr. Grassia's] request were also asked to search for at;id provide any texts or emails that might be public records responsive to [Mr. Grassia's] request and for which the City is not the custodian. All of the documents identified were then stored in electronic format, placed on a thumb drive, labeled according to their content, and provided to [Mr. Grassia] on April 3." Your July 25th response also indicates that "[t]o the extent that there was a text exchange between or among the individuals named in [Mr. Grassia's] request, [Mr. Grassia] have both sides of the exchange, including texts involving Kelly Ferretti and Mayor Cahill, as well as the Febrnary 12 group text to which you refer in your June 26 appeal. Note that it is clear that the Febrnary 12 text reads, "[h]I everyone, [p]lease check your Beverlyschools email. I just sent the interview questions and a few notes." You informed Mr. Grassia that there is nothing preceding the words, "hi everyone." Finally, the City informed Mr. Grassia that the Kris Silverstein-Mayor Cahill text exchange rega1·ding fee reductions is outside the date of Mr. Grassia's request. As a result of the City's July 25th response, Mr. Grassia appealed a second time, and the , current appeal was opened. 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 failing 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

Kevin Q. Corridan, Esq. SPR19/1767 Page 3 September 12, 2019 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 (c) The City provided another response on July 25th concerning its Exemption ( c) claim to redact medical information for the records provided to Mr. Grassia. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel infonnation that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical infonnation that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). In its July 25th response, the City explained that the only record redacted under the first clause of Exemption ( c) as medical information was one text message. This text message was provided to Mr. Grassia previously, and the City included a second copy of the text message with its July 25th response to Mr. Grassia. A review of the February 10, 2019 email by this office reveals that the brief discussion pertained to a health/medical issue, which the City redacted as medical information that is exempt under the first clause of Exemption ( c ). I find that the City has met its burden in claiming Exemption ( c) to withhold the medical information from the text message. In his August 29th petition, Mr. Grassia continues to claim that he was not provided with any text messages from Kelley Ferretti's cell phone. The City stated in its July 25th response that it provided all records responsive to Mr. Grassia's request, including Ms. Fen-etti's text messages. I note that Mr. Grassia provided this office with a copy of the records he received, including text messages from Ms. Ferretti's cell phone. I find that the City has met its burden of responding to this request.

Kevin Q. Corridan, Esq. SPR19/1767 Page4 September 12, 2019 The City also informed Mr. Grassia and this office that it does not have possession, custody or control of the private cell phone billing statements of the individuals named in Mr. Grassia's request. I find that the City has met its burden ofresponding to this request in its prior appeal and in its July 25th response. Mr. Grassia indicated that he may not have received all the text messages of Mayor Cahill. The City's July 25th response explains that the Kris Silverstein-Mayor Cahill text exchange regarding fee reductions appears to be dated March 6, which is outside of the time period of Mr. Grassia's request. I note that Mr. Grassia requested records from February 10 and March 4, 2019. I advise Mr. Grassia that if he seeks records beyond his original March request, he should make a new request for any additional messages between Kris Silverstein and Mayor Cahill. I find that the City has met its burden in responding to Mr. Grassia's March 20, 2019 request for public records, and providing a response to my July 12th detennination. Conclusion Accordingly, I consider this administrative appeal closed. If Mr. Grassia is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Grassia