Robert E. Whalen v. Bristol County Retirement Board (SPR 20213133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3133 Roxanne Donovan Executive Director Bristol County Retirement Board 645 County St.; County Crossing Taunton, MA 02780 Dear Ms. Donovan: I have received the petition of Robert E. Whalen appealing the response of the Bristol County 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 Bristol County Retirement Board, still living, who retired as employees of the Bristol County Public School system. This information may consist of, but not be limited to, hardcopy, electronic, or digital records.” Previous appeal This request was the subject of a previous appeal. See SPR21/2176 Determination of the Supervisor of Records (September 1, 2021). The Board provided a response on September 1, 2021. Unsatisfied with the Board’s response, Mr. Whalen petitioned this office and this appeal, SPR21/3133, 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 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

Roxanne Donovan SPR21/3133 Page 2 December 13, 2021 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 Board’s September 1st Response In its September 1, 2021 response, the Board stated, “the Board declined to provide that documentation, citing to M.G.L. c. 66, § 10(d), which prior to its most recent amendment included the same language set forth in M.G.L. c. 4, § 7(26)(o).” 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). In the September 1st response, the Board stated, “the Legislature has seen fit to exclude from disclosure the home address, personal email address and home telephone number of public employees, that same exemption should extend to public employees who are retired in order to effectuate the statutory purpose, which is clearly to protect the privacy of public employees who, by virtue of being public employees, already have a diminished expectation of privacy. See Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985). Here, by expanding the exemptions set forth in M.G.L. c. 4, § 7(26) to exclude from disclosure such personal information, the clear statutory intent is to keep this information private. “ The Board further explained that “[a]lthough the Legislature did insert a carve out in which holders of this information ‘may’ produce it to certain employee organizations, in this context given the overriding purpose of the exemption, the word ‘may’ cannot mean ‘shall,’ and thus the Board properly exercised its discretion in denying Mr. Whalen's request.”

Roxanne Donovan SPR21/3133 Page 3 December 13, 2021 Where the requested records are the type contemplated under Exemption (o), 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. Whalen has greater rights of access through alternative means. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Whalen 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert E. Whalen Michael Sacco, Esq.