Sarah Solomon v. Newton, City of (SPR 20241974)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2024 SPR24/1974 Carol Moore City Clerk City of Newton 1000 Commonwealth Avenue Newton Centre, MA 02459 Dear Ms. Moore: I have received the petition of Sarah Solomon appealing the response of the City of Newton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 5, 2024, Ms. Solomon requested: Please provide [1] the original artist application from Skip Schiel and any correspondence relating to the application, and [2] all records concerning the consideration and selection process for the exhibit, including all official determinations. Please provide [3] copies of the posting of the meetings where the jury deliberated the submissions under the Massachusetts Open Meeting law, as well as all minutes and other records created pursuant to G.L. c. 30A, §§18-25. The City responded on July 1, 2024, providing some responsive records with redactions. Unsatisfied with the response, Ms. Solomon petitioned this office and this appeal, SPR24/1974, 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. 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

Carol Moore SPR24/1974 Page 2 July 24, 2024 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 July 1st Response In its July 1, 2024 response, the City states, “[a] search of all public records in the custody and control of the City reveals that the attached documents are responsive to your request. Responding further, in accordance with M.G.L. c. 66, the City has redacted certain portions of the documents pursuant to M.G.L. c. 4 sec. 7 (26). The redactions were made for data relating to an individual, the disclosure of which would constitute an unwarranted invasion of personal privacy. There is no charge associated with this request. This completes the City’s response.” Current Appeal In her appeal to this office, Ms. Solomon states, “[n]o documentation was provided detailing the selection criteria and consideration for how the final 11 exhibits were chosen based on the larger submission pool of approximately 38…. Since information was redacted as to who these public servants are and the consideration that was given in their decision making the public interest has not been served.” She continued, “I ask the Secretary of State’s Division of Open Government to direct [an identified individual] … to comply fully with the letter and spirit of the law and provide the full meeting notes from the August 23, 2023 meeting and all communications previously released in an unredacted form.” Burden of Specificity The City is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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”). 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). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Carol Moore SPR24/1974 Page 3 July 24, 2024 Accordingly, the City’s response did not contain the specificity required in a denial of access to public records. Particularly, the City has not cited an exemption for withholding or redacting the responsive records. The City must clarify this matter. Records in Existence Further, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the City’s response, coupled with Ms. Solomon’s claims above, it is unclear whether the City possesses additional records responsive to the request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Ms. Solomon with a response to her 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: Sarah Solomon