Robert E. Whalen v. Chicopee Contributory Retirement System (SPR 20212165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 9, 2021 SPR21/2165 Lidia Rodriguez Records Access Officer Chicopee Retirement Board Chicopee City Hall 274 Front Street Chicopee, MA 01013 Dear Ms. Rodriguez: I have received the petition of Robert Whalen appealing the response of the Chicopee Retirement Board (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 19, 2021, Mr. Whalen requested “[c]opies of the names and addresses, in any and all forms, of all members of the Chicopee Retirement Board, still living, who retired as employees of the Chicopee Public School system. This information may consist of, but not be limited to, hardcopy, electronic, or digital records.” The Board provided a response on May 28, 2021. Unsatisfied with the Board’s response, Mr. Whalen petitioned this office and this appeal, SPR21/2165, 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. 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

Lidia Rodriguez SPR21/2165 Page 2 September 9, 2021 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 Board’s May 28th Response On May 28, 2021, the Board provided a response explaining it “reviewed the documents and have redacted information that is exempt from disclosure under the privacy exemption. Information redacted under the privacy exemption includes employee home addresses. [The Board is] aware that [the Board has] the discretion to release documents containing the information [Mr. Whalen may] seek because [Mr. Whalen is] an employee organization pursuant to M.G.L. c. 150E; however, Section 10(d) states that [the Board] ‘may’ provide that information, which means [the Board] are not required to do so.” Based on the Board’s response, it is unclear what exemption it is claiming to withhold the requested information from disclosure. If the Board intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). Conclusion Accordingly, the Board is ordered to provide Mr. Whalen 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: Robert E. Whalen Anna Maria Hamblin