Bryan Gamby v. Methuen, City of, - Department of Public Works (SPR 20210461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 9, 2021 SPR21/0461 Patrick Bower City of Methuen – Department of Public Works 10 Ditson Place, Room 100 Methuen, MA 01844 Dear Mr. Bower: I have received the petition of Bryan Gamby appealing the response of the Methuen Department of Public Works (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2021, Mr. Gamby requested the following records: “1: Phone call history from the whole day of January 7th, 2021 from an employee’s City owned phone. . . . 2: Email exchanges between the employee associated with the following email: . . . @ci.methuen.ma.us Specific information I am requesting is only the email exchanges related to city business on the following days: January 5th through the 9th. 3: Text message exchanges from an employee’s City owned phone. . . . Specific information I am requesting is only the text message exchanges on the following days: January 5th through the 9th.” Previous appeal This request was the subject of a previous appeal. See SPR21/0249 Determination of the Supervisor of Records (February 22, 2021). In my February 22nd determination, I directed the Department to clarify whether it possesses texts messages within the specific time frame that are responsive to the request. Accordingly, I ordered the Department to provide Mr. Gamby with a response to the request, in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department provided a response on February 23, 2021. Unsatisfied with the Department’s response, Mr. Gamby petitioned this office and this appeal, SPR21/0461, was opened as a result. While this appeal was pending, the Department provided a supplemental response on February 24, 2021. This appeal pertains to items 1 and 3 only. 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

Patrick Bower SPR21/0461 Page 2 March 9, 2021 Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Gamby’s purpose in making the request has no bearing on the public status of any existing responsive records. 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 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 Department’s February 23rd and 24th responses Item 1 – phone call history In its February 24, 2021 response, the Department posits, “[t]he requested documents contemplated the ‘phone history’ from a city cell phone containing numerous telephone numbers of private citizens having a reasonable expectation of privacy. . . . It is the position of the [Department] that the privacy interest of those possessing private telephone numbers outweigh the public interest in this information.” Although the Department claims the records contain telephone numbers of private citizens, it is unclear how those portions cannot be redacted from the responsive records. 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). Any non-exempt, segregable portion of a public records is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must

Patrick Bower SPR21/0461 Page 3 March 9, 2021 explain why segregable portions cannot be provided. Item 3 – text messages In its February 23, 2021 response, the Department asserts, “[t]he only way to receive text message data content is through a formal court order process. All requests for text message content must be made through proper legal process (i.e., warrant, court order or subpoena with notarized written Verizon user consent form indicating they are the intended recipient or originator of the text message) and text content can only be released to a judge or magistrate. Therefore, this is not information we are able to provide through a FOIA request.” In Massachusetts, the definition of a public record is “broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee . . .” The text messages were created on a City-owned cell phone by a City employee, and but for the employee’s use of the phone the information would not have been created. Therefore, I find that the text messages fall under the statutory definition of a public record, subject to public disclosure. Consequently, I find the Department has not met its burden to withhold the responsive text messages, in their entirety, from disclosure. 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). Conclusion Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Gamby with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Bryan Gamby