Emma Rindlisbacher v. Taunton, City of - City Clerk (SPR 20250295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 12, 2025 SPR25/0295 Matthew J. Costa, Esq. City Solicitor City of Taunton Law Department 15 Summer Street Taunton, MA 02780 Dear Attorney Costa: I have received the petition of Emma Rindlisbacher appealing the response of the City of Taunton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 30, 2025, Ms. Rindlisbacher requested the following: [The Town Chief Financial Officer] showed me a folder that contained subfolders corresponding to the arpa grants I had filed public records requests regarding. In the parent folder, there were a few documents that were in the parent folder (not subfolders). Pursuant to mass public records laws, I would like copies of the documents in the parent folder. The City responded on January 30, and again on January 31, 2025. Unsatisfied with the City’s responses, Ms. Rindlisbacher petitioned this office, and this appeal, SPR25/0295, 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

Matthew J. Costa, Esq. SPR25/0295 Page 2 February 12, 2025 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 30th and 31st Responses In its January 30, and January 31, 2025 responses, the City states that it is withholding responsive records pursuant to Exemption (e) of the Public Records Law. See G. L. c. 4, § 7(26)(e). Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. In its January 30th response, the City states that “the excel worksheets are [the Chief Financial Officer’s] workpapers they are not subject to the public records law.” In its January

Matthew J. Costa, Esq. SPR25/0295 Page 3 February 12, 2025 31st response, under Exemption (e), the City further explains the following: The record that is being sought is our Chief Financial Officer’s personal workpaper and is not a public record. It falls within exemption (e) of the public record law for “notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.” It is not in the public interest to release personal workpapers of municipal employees. The Guide to the Public Record law explains that “notes are not public if they are personal in nature, kept by the employee merely to assist them, are not shared with anyone in the department and are not maintained as part of the department’s files.” These records which were prepared by the CFO to assist him personally and not shared with other employees or filed with any city department are not public records. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (e) claim made by the City to withhold the responsive records, the City must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal

Matthew J. Costa, Esq. SPR25/0295 Page 4 February 12, 2025 community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher