Frank Wood v. Framingham, City of - City Clerk (SPR 20230246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2023 SPR23/2046 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Frank Wood of 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 December 23, 2023, Mr. Wood requested from the City’s Human Resources Department, “[a]ll union grievance forms filed by any City employee between 1/1/2022 [and] 12/23/2022.” Prior appeal The requested records were the subject of a prior appeal. See SPR23/0060 Determination of the Supervisor of Records (January 24, 2023). In my January 24th determination, I found that the City did not meet its burden of specificity in responding to Mr. Wood’s December 23, 2022 request. Accordingly, I ordered the City to provide Mr. Wood with a response to his December 23rd request. The City responded on February 7, 2023. Unsatisfied with the response, Mr. Wood petitioned this office and this appeal, SPR23/2046, 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 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. Iversen SPR23/0246 Page 2 February 23, 2023 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 February 7th response In its February 7, 2023 response, the City cited Exemption (b) of the Public Records Law to withhold the requested records in its entirety. 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, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. In its February 7th response, the City asserts, “[t]he City is withholding any responsive records under exemption (b) of the MA Public Records Law. The records sought are related solely to internal personnel rules and practices of the City. Further, withholding of said records is necessary for the proper performance of necessary government functions. The requested records are internal Union records that the public cannot reasonably be expected to have an interest in, the release of which could cause rules or regulations to be circumvented. As a result, they will be withheld.”

Paul J. Iversen SPR23/0246 Page 3 February 23, 2023 Upon review of the City’s responses, the City did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the City’s necessary government function. Furthermore, it is unclear why the records cannot be redacted. 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). The City must clarify these matters. As a result, I find the City did not meet its burden of specificity to withhold the responsive records, in their entirety, under Exemption (b). Conclusion Accordingly, the City is ordered to provide Mr. Wood with a response to his 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. Mr. Wood may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Frank Wood