Robert E. Whalen v. Chelsea, City of - Retirement System (SPR 20213136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3136 Barbara O’Brien Records Access Officer/Executive Director Chelsea Retirement System 500 Broadway, Room 214 Chelsea, MA 02150 Dear Ms. O’Brien: I have received the petition of Robert E. Whalen appealing the response of the 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 May 19, 2021, Mr. Whalen requested “[c]opies of the names and addresses, in any and all forms, of all members of the Chelsea Retirement Board, still living, who retired as employees of the Chelsea 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 SPR21/2231 Determination of the Supervisor of Records (September 2, 2021). The Board provided a response on September 2, 2021. Unsatisfied with the Board’s response, Mr. Whalen petitioned this office and this appeal, SPR21/3136, 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

Barbara O’Brien, RAO SPR21/3136 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); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Board’s September 2nd Response In its September 2, 2021 response, the Board states, “Exemption (o), which was stated in [the Board’s] response to Mr. Whalen was properly invoked.” 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). The Board also explained in its September 2nd response that “M.G.L. c. 66, section 10B states . . . such information may be disclosed to an employee organization under chapter 150E . . .. [The Board] believes 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.” Where the requested records are the type contemplated under Exemption (o) and of the Public Records Law, 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.

Barbara O’Brien, RAO SPR21/3136 Page 3 December 13, 2021 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