Herman, Colman v. Office of the Attorney General - Non-Profit Organizations/Public Charities Division (SPR 20140069)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 14, 2014 SPR14/069 Mr. Colman M. Herman 1200 Adams Street Dorchester Lower Mills MA 02124 ----------~11r Henn~·----------------------------------------------------------------------- I have received your petition appealing the response of the Office of the Attorney General (AGO) to your January 15 and January 18,2014 requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Subsequent to the opening of this appeal this office received your petition appealing the response of the AGO to your February 7, 2014 request for public records. The issues surrounding these requests have been combined into this one written determination. In January 2014 you sent two requests to the AGO seeking access to records in the custody of the AGO related to certain negotiations between the Boston Red Sox (Red Sox) and the Boston Redevelopment Authority (BRA) regarding a proposed use ofYawkey Way and air rights related to the seats found in the Green Monster section ofFenway Park. In response Assistant Attorney General Lorraine A. G. Tarrow indicated that the AGO holds no records responsive to your request. You appealed this response, indicating that some records must exist. In February 2014 you requested copies of any communications between AGO Director of Communications Brand Puffer and the Boston Herald, related to its publication of a recent article on the Red Sox, as well as any communications between Mr. Puffer and any other employee of the AGO. AAG Tarrow responded to this request, indicating there are no records responsive to the first part of your request. In her written response AAG Tarrow stated that any records that may exist responsive to the second part of this request would be withheld under the deliberative process exemption of the Public Records Law. G. L. c. 4, § 7 (26)(d). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Colman M. Herman SPR14/069 Page Two March 14, 2014 Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.). In a telephone conversation AAG Tarrow explained that any responsive records would relate to general deliberations by the AGO on how investigations are conducted, and whether any such investigation is or would be conducted related to your request. In your February 21, 2014 ------!Jle~tMte:;,Lr--ttvo--Wtl:lls_office you provided a link to an article in the Boston Herald that states that an ongoing matter between the Boston Red Sox and the Boston Redevelopment Authority had concluded, therefore no deliberation remained. On the contrary, any deliberation conducted by the AGO would be related not to negotiations between the BRA and the Red Sox, but by and between members of the AGO. AAG Tarrow has indicated that any such deliberation has not concluded. Accordingly, whereas the AGO has indicated that no records exist responsive to portions of your request, and any records that do exist were properly withheld under Exemption (d) of the Public Records Law, I will consider this administrative appeal closed. Supervisor of Records cc: Ms. Lorraine A.G. Tarrow, Esq.