Robert E. Whalen v. Methuen Contributory Retirement System (SPR 20212180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10, 2021 SPR21/2180 Kaitlyn Doucette Retirement Administrator Methuen Retirement Board 41 Pleasant Street, Suite 303 Methuen, MA 01844 Dear Ms. Doucette: I have received the petition of Robert E. Whalen appealing the response of the Methuen 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 Methuen Retirement Board, still living, who retired as employees of the Methuen Public School system. This information may consist of, but not be limited to, hardcopy, electronic, or digital records.” The Board responded on May 26, 2021. Unsatisfied with the Board’s response, Mr. Whalen appealed, and this case 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 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Kaitlyn Doucette SPR21/2180 Page 2 September 10, 2021 custodian must provide the responsive records. The Board’s May 26th Response On May 26, 2021, the Board provided a response explaining “[t]he addresses [Mr. Whalen] seek[s] are exempt from disclosure pursuant to M.G.L. c. 66, § 10(d). [The Board is] aware that [the Board has] the discretion to release documents containing the information [Mr. Whalen may] seek because [he represents] 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 is] 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 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 providing 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 his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert E. Whalen