Gar Chung v. Boston Water & Sewer Commission (SPR 20200002)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebec~a S. Murray S11pe111isor of Records January 7, 2020 SPR20/002 Dolores Randolph Boston Water and Sewer Commission 980 Harrison A venue Roxbury, MA 02119 Dear Ms. Randolph: I have received the petition of Gar Chung, of Financial Investment News, appealing the response of the Boston Water and Sewer Commission (Commission) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Chung requested a copy of: 1. The NEPC search report associated with an RFQ for small to mid-cap equity managers; and, 2. Any manager presentations from small to mid-cap equity managers, including. from Boston Trust & Investment Management. By email on December 17, 2019, the Commission provided Mr. Chung with a copy of the September 30, 2019 NEPC report. However, in its December 31, 2019 response, James Faretra informed Mr. Chung that the Commission is withholding certain of the records pursuant to Exemption (g) of the Public Records Law. The Commission posits that the information contains proprietary and confidential information intended for the Commission only and not to be distributed. As a result of the denial, Mr. Chung petitioned the Supervisor of Records (Supervisor) and this 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, § 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 . 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

Dolores Randolph SPR20/002 Page 2 January 7, 2020 order to Withhold a requested record. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends 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. 5.07, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). Exemption (g) 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 sub-clause shall not apply to information submitted as required by law or as a condition ofreceiving 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 not provided by law; and ( 6) Information not submitted as a condition of receiving a governmental contract or benefit. Burden of specificity in claiming exemptions; duty to segregate The Commission denied Mr. Chung's request without supporting its Exemption (g) claim to withhold responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Commission did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). In addition, the Commission did not identify the records, categories of records or pmiions ofrecords in its possession responsive to Mr. Chung's request that it intends to withhold from disclosure under Exemption (g). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Commission

Dolores Randolph SPR20/002 Page 3 January 7, 2020 withheld responsive records without identifying which records those are. Therefore, the Commission must identify what type ofrecord(s) it has in its possession that the Commission withheld under Exemption (g). Conclusion Accordingly, the Commission is ordered to provide Mr. Chung with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations 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: Gar Chung