Thomas Henry v. Framingham, City of - Housing Authority (SPR 20232969)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 21, 2023 SPR23/2969 Janet Bibo Executive Assistant Framingham Housing Authority 1 John J Brady Drive Framingham, MA 01702 Dear Ms. Bibo: I have received the petition of Attorney Thomas Henry appealing the response of the Framingham Housing Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 18, 2023, Attorney Henry requested records related to Carlson Crossing Housing West Modernization. Specifically, Attorney Henry requested: [1.] Any and all certified payrolls that you are in possession of from any contractors performing roofing, drywall, and windows for the [Carlson Crossing Housing West Modernization]. [2.] Copy of the wage assignment sheet. [3.] Copy of any or all clerk logs or daily reports submitted. The Department provided a response on September 28, 2023. Unsatisfied with the Department’s response, Attorney Henry petitioned this office and this appeal, SPR23/2969, 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 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

Janet Bibo SPR23/2969 Page 2 December 21, 2023 order to withhold a requested record. G. L. c. 66, § 10(d)(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 Authority’s September 28th Response In its September 28, 2023 response, the Authority provided records and redacted certain information from the records. Current appeal In his appeal, Attorney Henry states, “[the Authority] responded to [the] request, but redacted select information in the responsive certified payroll documents… in its September 28, 2023 response, [the Authority] never provided any reason(s) or cited the specific exemption(s) in support for redacting information…” Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the redacted information is exempt from disclosure under the Public Records Law. Based on the Authority’s response, it is unclear what exemption under the Public Records Law the Authority is claiming to withhold portions of the requested records from disclosure. It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold or redact 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 is based…”); 950 C.M.R. 32.06(3); see also Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Consequently, I find the Authority must identify an exemption and explain with specificity how the exemption applies to redact the records. G. L. c. 66, § 10(b). Conclusion Accordingly, the Authority is ordered to provide Attorney Henry with a response to the

Janet Bibo SPR23/2969 Page 3 December 21, 2023 request, provided 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: Thomas Henry, Esq. Bob Connoni