Alberto Brito v. Framingham, City of (SPR 20232930)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2023 SPR23/2930 Paul J. Iversen Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Alberto Brito 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 25, 2023, Mr. Brito requested the following: All written, or electronic communication between mayor’s office including mayor, [and three named individuals] or anyone affiliated or working on behalf her or the organization invictus forever Inc. Dates 3/1/2023 and present. The City responded on October 31, 2023, citing Exemption (g) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(g). Unsatisfied with the City’s response, Mr. Brito appealed, and this case 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 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 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 SPR23/2930 Page 2 December 19, 2023 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 City’s October 31st Response In its October 31, 2023 response, the City cites Exemption (g) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(g). Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, § 7(26)(g). For this exemption to apply in order to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not submitted as required by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. In its October 31st response, under Exemption (g), the City states the following: The City must withhold said records under exemption (G) of the MA Public Records law, as they are (1) trade secrets or commercial or financial information; (2) voluntarily provided to a government entity; (3) for use in developing government policy; (4) upon an assurance of confidentiality; (5) information not submitted by law; and (6) information not submitted as a condition of receiving a governmental benefit. The City is advised that pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. See G. L. c. 66, § 10(b)(iv) (a

Paul J. Iversen SPR23/2930 Page 3 December 19, 2023 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”). Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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). Based on the City’s response, it is unclear how any of the records requested by Mr. Brito would meet all six of the criteria contained in Exemption (g). Further, the City has not identified the records, categories of records or portions of records in its possession that it intends to withhold. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Brito with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Alberto Brito