Daniel J. O'Brien v. Newton, City of - City Clerk (SPR 20212903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 8, 2021 SPR21/2903 Christopher Sullivan Acting City Clerk City of Newton 1000 Commonwealth Avenue Newton, MA 02459 Dear Mr. Sullivan: I have received the petition of Daniel J. O'Brien appealing the response by the City of Newton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 13, 2021 Mr. O’Brien requested the following records: 1. The salary amount of [named] employee … for FY22, FY21, FY20, and FY19. If [named] person is a pay-per-diem employee or unpaid volunteer, please indicate so, and please indicate any financial compensation, if any … receives. 2. The salaries of any employee (full-time, contracted, or per-diem) of the City of Newton who is tasked with enforcement of off-leash dog tags in City of Newton public parks for FY22, FY21, FY20 and FY19. The City responded on November 1, 2021. Unsatisfied with the response, Mr. O’Brien petitioned this office and this appeal, SPR21/2786, 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 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

Christopher Sullivan SPR21/2903 Page 2 November 8, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s November 1st Response In its November 1st response, the City produced redacted records. Current appeal In his November 1st appeal, Mr. O’Brien states, “… the City … provided me the salary amount of [named] employee for FY22 … The City did not provide the information for FY21, FY20, or FY19, or any of the other items requested, nor did the City provide a response as to why this additional information was not included in its response to me. Under the Massachusetts public records law, if information is not provided to the requester, the governmental entity must state a reason while citing applicable law. I am simply requesting the salary amount(s) of a city employee(s) for the past four years.” The City’s November 1st response did not contain the specificity required in a denial of access to public records. The City redacted records without providing an exemption supporting the redaction. As a result, I find that the City did not satisfy its burden in responding to this records request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). To the extent that the requested records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Order Accordingly, the City is ordered to provide Mr. O’Brien with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, I . • -. . . - ~ Rebecca S. Murray Supervisor of Records cc: Daniel J. O’Brien