Issac Simon Hodes v. Lynn, City of - Office of the City Solicitor (SPR 20240653)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2024 SPR24/0653 James Lamanna, Esq. Assistant City Solicitor City of Lynn 3 City Hall Square, Room 406 Lynn, MA 01901 Dear Attorney Lamanna: I have received the petition of Isaac Simon Hodes appealing the response of the City of Lynn (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 28, 2023, Mr. Hodes stated: I am writing to request a document related to the Financial Feasibility Peer Review Memorandum dated August 1, 2023 which was prepared by RKG Associates, Inc. On its first page, the document states that RKG Associates, Inc. was “retained by the City of Lynn” to “review the financial feasibility pro forma analysis provided by the South Harbor Development Project... developer, Eden Properties... on May 3, 2023 (attached at the end of this memorandum).” Please email me a copy of the “financial feasibility pro forma analysis” that was provided by the developer and attached to the August 1, 2023 memorandum. The City responded on December 5, 2023. Unsatisfied with the City’s response, Mr. Hodes appealed and this case, SPR24/0653, 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

James Lamanna, Esq. SPR24/0653 Page 2 March 14, 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 December 5th Response In its December 5, 2023 response, the City cited Exemption (g) of the Public Records Law to withhold the responsive records. Current Appeal In his appeal, Mr. Hodes states, “the situation does not satisfy at least two of the six criteria… the City was clearly not developing any policy… Criterion #4 requires that an ‘assurance of confidentiality’ was given to the entity that provided the information. The City’s denial of the records request asserts that such an assurance was given in this case; at this time I am not aware of any publicly available evidence or written documentation of such a commitment… the document was in fact submitted as a condition of receiving a governmental benefit in the form… I believe it is clear that exemption (g) does not apply in this situation…” 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 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,

James Lamanna, Esq. SPR24/0653 Page 3 March 14, 2024 (5) Information provided by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. Under Exemption (g), the City states, “[t]he records that [Mr. Hodes is] seeking contain financial information that was voluntarily provided to the City of Lynn and the EDIC upon a promise of confidentiality. There was no legal requirement that these financial records be provided to the City of Lynn and/or EDIC. The provision of these financials was not a condition of receiving any governmental contract or benefit.” Based on the City’s response, it is unclear how the records requested by Mr. Hodes meet all six of the criteria contained in Exemption (g). It is additionally uncertain how the records can be withheld in their entirety. 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. Conclusion Accordingly, the City is ordered to provide Mr. Hodes with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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: Isaac Simon Hodes