Alberto Brito v. Framingham, City of (SPR 20240029)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0029 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/2930 Determination of the Supervisor of Records (December 19, 2024). In my December 19th determination, I ordered the City to clarify its claims under Exemption (g) for withholding the responsive records, and ordered the City to identify the records that it intends to withhold from disclosure. Subsequently, the City responded on January 4, 2024, again 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 further 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). 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 SPR24/0029 Page 2 January 19, 2024 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. Attorney 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 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 January 4th Response In its January 4, 2024 response, the City “reaffirms and reiterates that the withholding of records responsive to the above-referenced request under G. L. c. 4, § 7(26)(g) is proper under the law.” 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 January 4th response, the City argues the following under Exemption (g): These records meet all six criteria in the exemption. They are (1) trade secrets or commercial or financial information; (both commercial and financial information)

Paul J. Iversen SPR24/0029 Page 3 January 19, 2024 (2) voluntarily provided to a government entity; (these records were provided absent any compulsion from any court or agency) (3) for use in developing government policy; (these records were used in developing the planning policy of the City) (4) upon an assurance of confidentiality; (these records were provided upon the execution of a Confidentiality and Nondisclosure Agreement) (5) information not submitted by law; (these records are not related to a filing requirement) and (6) information not submitted as a condition of receiving a governmental benefit (these records were not provided as part of a contract bid or other government benefit). Consequently, exemption (g) applies to these records. [Emphasis in original.] Current Appeal In his appeal petition, Mr. Brito argues the following, with respect to the six criteria of Exemption (g): The spending of funds, public financial information is not trade secrets, private financial information when it relates to assessments of property in a city, taxes, or information provided to the town by an external agency is not a trade secret. 2 may be ok, 3 - the records of purchasing a building with public funds is not for use in development of government policy. Planning is not policy. 4. NDA’s should not have been entered into, and once the transaction was completed it likely would have invalidated the NDA. 5 may be ok 6 is not relevant at all. Identify the Records; Duty to Segregate Although the City has provided some additional information concerning the applicability of the six criteria of Exemption (g), based on the City’s January 4th response, it remains uncertain what types of records the City has withheld from disclosure. 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). Accordingly, the City must identify the records, categories of records or portions of records in its possession that it intends to withhold under Exemption (g). Additionally, it remains unclear how the records can be withheld in their entirety. Particularly, it is uncertain how non-exempt information cannot be segregated and redacted. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify whether segregable portions of the records can be provided. Conclusion Accordingly, the City is ordered to provide Mr. Brito with a response to the request,

Paul J. Iversen SPR24/0029 Page 4 January 19, 2024 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: Alberto Brito