Timothy Ferguson v. Worcester, City of - Law Department (SPR 20201020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 7, 2020 SPR20/1020 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester Law Department 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Timothy Ferguson, Business Manager for the Plumbers and Pipefitters Local 4, appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ferguson requested: “…copies of certified payrolls submitted by Harold Brothers Mechanical for the plumbing and pipefitting work from the Worcester Redevelopment Authority for Polar Park. I am also requesting copies of the prevailing rate sheets for this project.” In addition, Mr. Ferguson requested that the City waive the fees or provide a reduction in fees to provide these records. In a June 11, 2020 email, Mike Vigneux, the Records Access Officer in the City, provided Mr. Ferguson with the responsive certified payroll records, and asserted that the home addresses of the employees on the Polar Park project were redacted under Exemption (o) of the Public Records Law. Appeal to the Supervisor of Records As a result of the City’s denial, Mr. Ferguson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. You informed a Senior Attorney in the Public Records Division that Mr. Ferguson did not provide the City with a copy of his petition to the Supervisor seeking an appeal as required by 950 C.M.R. 32.08(1)(h). Mr. Ferguson is reminded that under the requirements in the Public Records Law when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the Records Access Officer associated with such petition. Id. It is my understanding that the City was provided with a copy of the petition by this office. 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

Janice E. Thompson, Esq. SPR20/1020 Page 2 July 7, 2020 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). The City’s June 26, 2020 email response Initially, on June 11, 2020, the City claimed that Exemption (o) allowed the City to withhold the home addresses for Harold Brothers’ workers listed on the certified payrolls. In a June 26, 2020 email to Mr. Ferguson, City Solicitor Michael E. Traynor asserts, “[t]he exemption [Exemption (o)] that was cited to support the redactions was in error. The correct exemption authorizing the redactions is [E]xemption (a)…in this case, G. L. c. 214, § 1B governing an individual’s right of privacy.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Janice E. Thompson, Esq. SPR20/1020 Page 3 July 7, 2020 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 214, § 1B states: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. Attorney Traynor further states, “[t]he requirement for certified public payroll records exists to ensure that employees on public construction projects are paid the proper wage by their employers, but they do not have to give up their privacy in return. I am of the opinion that the publication of home addresses of employees working on a publicly-funded project would be an unreasonable interference with their privacy. Accordingly, we have redacted the personal information.” G. L. c. 214, § 1B does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cnty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this cited statute does not allow for the withholding of the home addresses of the employees listed on the certified payroll records. Certified payroll records The law regarding the requirements to file certified payroll records for every publically- funded construction project falls under G. L. c. 149, § 27B. Section 27B provides in pertinent part: Every contractor, subcontractor or public body engaged in said public works to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee ... [S]uch records shall be open to inspection ... G. L. c. 149, § 27B (Emphasis added).

Janice E. Thompson, Esq. SPR20/1020 Page 4 July 7, 2020 Whereas certified payroll records are to be available for public inspection, the statute does not limit disclosure but rather evidences a legislative intent to ensure that these records are publicly available. Likewise, the statute indicates the legislative purpose to make the information that is required to be provided by a contractor to the awarding authority open to public inspection. Conclusion Accordingly, the City is ordered to provide Mr. Ferguson with the requested records, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Timothy Ferguson Mike Vigneux, Records Access Officer