Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20222116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2022 SPR22/2116 Paul J. Iverson Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iverson: I have received the petition of Olufunmilola Shelly appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2022, Ms. Shelly requested “…all complaints against [an identified person] between 4/1/2022 and 8/31/2022. Seeking all written letters of reprimand between 4/1/2022 and 8/31/2022. Seeking all documents signed either electronically or physically by [an identified person] between 8/15/2022 and 8/31/2022.” On August 15, 2022, the City provided a response, asserting, “[c]losing this request as duplicate to [the City’s Request No.] 2022-2063. As was explained in the correspondence you received this morning, without confirming that any particular category of records exist, the City intends to withhold said records under [E]xemptions (b) and (c) of the MA Public Records Law.” As a result of the City’s August 15th response, Ms. Shelly petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Ms. Shelly indicates, “[t]his was not a duplicate request this was another request with elements removed. This denial states that items are being withheld but not what the documents are and why specifically and which under each exemption. A blanket denial is not consistent with [the] [P]ublic [R]ecords [L]aw.” 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). 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

Paul J. Iverson SPR22/2113 Page 2 September 29, 2022 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 City’s August 15th response On August 15, 2022, the City denied Ms. Shelly’s request in its entirety under Exemption (b) and Exemption (c) of the Public Records Law. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest

Paul J. Iverson SPR22/2113 Page 3 September 29, 2022 or which would compromise security if disclosed). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City’s August 15th response did not contain the specificity required in a denial of access to public records. The City did not identify the records in its possession that it intends to withhold from disclosure under Exemption (b) and under Exemption (c). Further, the City merely cites Exemption (b) and Exemption (c) without any explanation of the applicability of the exemptions to the responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I find that the City did not meet its burden of specificity required by the Public Records Law to withhold records from disclosure. The City must provide a response regarding the responsive records in the City’s possession and its exemption claims. Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to her request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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.

Paul J. Iverson SPR22/2113 Page 4 September 29, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Olufunmilola Shelly