Stanley Mazurczyk v. Chelmsford, Town of - Town Manager (SPR 20201294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2020 SPR20/1294 Paul Cohen Town Manager Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Mr. Cohen: I have received the petition of Stanley Mazurczyk appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 6, 2020, Mr. Mazurczyk requested “. . . digital copies of original Verizon contracts for account #786801404-00001 and #481485108-00002. I’m also requesting records of equipment purchases and/or rentals attributed to Mr. Cohen use.” The Town provided a response on July 6, 2020, which included responsive records in redacted form pursuant to Exemption (b) of the Public Records Law. G. L. c. 4, § 7(26)(b). Unsatisfied with the Town’s response, Mr. Mazurczyk petitioned this office and this appeal, SPR20/1294, 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); 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. If there are any fees associated with a response a written, good faith estimate must be 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

Paul Cohen SPR20/1294 Page 2 August 17, 2020 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s July 6th response In its July 6, 2020 response, the Town states the following: “[t]he referenced equipment and service was purchased through State Contracts. Information is attached along with purchase price documentation. Phone numbers are redacted under Exemption (b), in accordance with the Supervisor of Records’ determination of the requestor’s previous Appeal SPR20/0210.” Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) ------------------------------------ (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). The Town’s response did not contain the specificity required in a denial of access to public records. As such, I find the Town has not met its burden to redact phone numbers under Exemption (b). Particularly, the Town has not established that the responsive phone numbers are solely related to internal personnel rules and practices of the government unit. It is additionally

Paul Cohen SPR20/1294 Page 3 August 17, 2020 uncertain how disclosure of this information would hinder the proper performance of the Town’s necessary government function. In the Town’s response, it references a previous determination, SPR20/0210, Determination of the Supervisor of Records (February 20, 2020). SPR20/0210 states “[w]here redactions have been made to the phone numbers of Town personnel whose duties involve law enforcement and emergency response, I find that the Town has met its burden to redact these records under Exemption (b). Where redactions have been made to the phone numbers of employees who do not have these duties, it is unclear how disclosure would prevent the ‘proper performance of necessary governmental functions,’ as required by Exemption (b). See G. L. c. 66, § 7(26)(b). Accordingly, these numbers may not be redacted.” Based on the Town’s response, it is unclear how the phone numbers redacted from the responsive records pertain to “Town personnel whose duties involve law enforcement and emergency response,” as described in the above determination. The Town must clarify this matter. In his appeal petition, Mr. Mazurczyk states the following: Town’s response failed to address account #481485108-00002. It provided numerous pages of arbitrary and irrelevant information without connecting it to this account or Mr. Cohen’s wireless phone number and devices (Pages 4-12). Records pertaining account #786801404-00001 are incomplete. Town provided November 2015 invoice which identifies purchase of a device under “New Plan” costing $1,039.97. Records describing that device were not included (Pages 13- 15). Town also failed to provide records pertaining “Previous Plan” and purchases of device(s) at its inception (Page 15). Based on Mr. Mazurczyk’s claims it is unclear if the Town possesses additional responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that additional records exist, they must be provided in a manner consistent with the Public Records Law. G. L. c. 66, § 10(b). Further, this office encourages Mr. Mazurczyk and the Town to continue to communicate to facilitate providing records more efficiently and affordably. For example, Mr. Mazurczyk may wish to clarify which records or additional records he seeks regarding account #481485108- 00002. See G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought); G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. Mazurczyk with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Paul Cohen SPR20/1294 Page 4 August 17, 2020 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: Stanley Mazurczyk