Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20222183)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2022 SPR22/2183 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 July 22, 2022, Ms. Shelly requested “…all documents pertaining to City employee take home vehicles, including . . . the words ‘request’, ‘supervisor’, ‘approval’, or ‘reason’ …every take home vehicle for any police office, fire personnel, city or school employee who currently has a vehicle.” On September 23, 2022, the City responded. Unsatisfied with the City’s response, Ms. Shelly petitioned this office and this appeal, SPR22/2183, 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) (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 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 SPR22/2183 Page 2 October 6, 2022 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 September 23rd response In its September 23, 2022 response, the City stated that it is withholding the requested records pursuant to Exemption (b). See G. L. c. 4, § 7(26)(b) 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 governmental 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 disclosed 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 or which would compromise security if disclosed). In its September 23rd response, the City stated, “…the records requested in this instance are used purely internally to ensure City employees use City transportation resources properly.” The City further stated, “[t]he risk of the possibility of an individual or group of individuals systematically analyzing and determining patterns in the way in which transportation resources are allocated in order to circumvent rules and regulation is acute if the records are not withheld.”

Paul J. Iverson SPR22/2183 Page 3 October 6, 2022 The City concludes, “[t]hat is, this an instance that fits this exemption perfectly: records related solely to internal personnel rules and practices, the release of which would significantly risk circumvention of agency regulations.” In this case, the City has not demonstrated that the requested records are solely related to internal personnel rule and practices of the government unit. Therefore, the City has not met its burden to withhold the responsive records under Exemption (b). Further, although the City states that “…the records requested in this instance are used purely internally to ensure City employees use City transportation resources properly[,]” it is unclear what record(s) responsive to Ms. Shelly’s request the City is withholding from disclosure. Please be advised, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the City must identify the record(s) it has in its possession that it withheld under Exemption (b), as well as provide specific reasons for such withholding. It is additionally uncertain how records cannot be segregated and exempt portions provided. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to the 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. Sincerely, Manza Arthur Supervisor of Records cc: Olufunmilola Shelly