Colman Herman v. Boston, City of - Law Department (SPR 20201015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 7, 2020 SPR20/1015 Shawn Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams:, I have received correspondence from Colman Herman appealing the response of the City of Boston Public Library (City) to a request for public records. G. L. c. 66, § 10(A); see also 950 C.M.R. 32.08(1). Specifically, on June 14, 2020, Mr. Herman requested the “1) settlement agreement that the City executed with [a named] employee [and] 2) [the named] employee’s job description.” The City responded and unsatisfied with the response, Mr. Herman petitioned this office and SPR20/1015 was opened as a result. 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, § 10A(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, § 10(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. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Shawn Williams, Esq. SPR20/1015 Page 2 July 7, 2020 The City’s June 25th response The City responded on June 25th and produced the job description of the named employee and stated, “[f]or public records purposes, there is no settlement agreement that is responsive to your request. …What does exist is a document that is called a ‘settlement agreement’ but is actually a resolution of a disciplinary matter whereby the employee continues to be employed by the Boston Public Library [and] this document is … therefore exempt from disclosure as a personnel record under the first clause of exemption (c) of the public records law, G. L. c. 4, § 7(26)(c).” In camera inspection In order to facilitate a determination as to the applicability of the City's claims under Exemption (c) to withhold the records in their entirety, the City must provide this office with un-redacted copies of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record, See 950 C.M.R. 32.08(4). 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. See 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 of review. 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 certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copies of the responsive records for in camera inspection without delay.

Shawn Williams, Esq. SPR20/1015 Page 3 July 7, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman