William G. Rehrey v. Chelsea, City of - Retirement System (SPR 20213115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2021 SPR21/3115 Barbara O’Brien Records Access Officer City of Chelsea Retirement System 500 Broadway Chelsea, MA 02150 Dear Ms. O’Brien: I have received the petition of Frank Valeri of the Retired State, County and Municipal Employees Association of Massachusetts appealing the response of the City of Chelsea Retirement Board (Board) 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. Valeri requested “the name, mailing address, email and phone number of all retirees retired since 12/31/2010.” The Board responded on August 31, 2021, citing Exemptions (o) and (p) for denying Mr. Valeri’s request. See G. L. c. 4, § 7(26)(o), (p). Unsatisfied with the Board’s response, Mr. Valeri 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 agency or municipality 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. Att’y 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

Barbara O’Brien SPR21/3115 Page 2 December 8, 2021 provided. G. L. c. 66, § 10(b)(viii); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Valeri refers to a 2015 determination letter from this office. See SPR14/718 Supervisor of Records Determination (February 19, 2015). In the February 19, 2015 determination, the Supervisor found that the City of Leominster Retirement Board had not met its burden to withhold similar records pursuant to Exemption (c) of the Public Records Law. Additionally, Mr. Valeri argues that “the Board’s denial runs counter to the fundamental principle of transparency as embodied in the Public Records Law (Chapter 66) and more importantly, violates the Association’s statutory right of access to the requested records.” In an email to this office and the Board on December 6, 2021, Mr. Valeri further argues “that in the context of the public records law the State Legislature’s use of the verb ‘may’ in the proviso is for purposes of carving out an exception to the prohibition in Exemption (o) and permitting the release of the records to those specifically named without a violation of the law being committed.” He contends “that the Records Custodian’s argument, based upon Exemption (o) and the use of the verb ‘may’ in its proviso amounts to an incorrect reading of the applicable law.” The Board’s August 31st Response In its August 31, 2021 response, the Board states that it “is denying this request under Exemption O and Exemption P of the MA Public Records Law.” Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o).

Barbara O’Brien SPR21/3115 Page 3 December 8, 2021 Exemption (p) Exemption (p) applies to: the name, home address, personal email address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause (o) G. L. c. 4, § 7(26)(p). In its August 31st response, the Board argues the following: Although § 10B of M.G.L. c. 66 was Amended by St. 2019, c. 73, § 1 and, as such permits disclosure of public employees’ personal information including, addresses and phone numbers, to a non-profit organization for retired public employees under chapter 180 in certain circumstances, the Board is not required to do so. In an email on December 1, 2021, the Board further argued the following: Such information may be disclosed to an employee organization under chapter 150E. [The Board] believe[s] that the language in the statute is discretionary, specifically with reference to the word “may”, as opposed to the word “shall”. The legislature vested the decision makers, in this instance the Chelsea Retirement Board, with the right to refrain from disclosing sensitive information on file regarding our members. As such, the Board believes it was within its rights to protect the requested information of its members from such disclosure. (Emphasis in original.) Where the requested records are the type contemplated under Exemptions (o) and (p) of the Public Records Law, and the Board may withhold such records, I find that the Board has met its burden under the Public Records Law. It is outside the scope of this office to determine whether Mr. Valeri has greater rights of access through alternative means. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Valeri is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Barbara O’Brien SPR21/3115 Page 4 December 8, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: William Rehrey for Frank Valeri