Handwerker, Ethan v. Executive Office for Administration and Finance - Office of Information Technology (SPR 20140173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 12, 2014 SPR14/173 Mr. Ethan Handwerker 17 Pine Knoll Road Lexington, MA 02420-1206 Dear Mr. Handwerker: This office has received your petition appealing the response of the Executive Office of Administration & Finance (Executive Office) to your request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of records relating to the Medical Use of Marijuana Program, including records regarding proposed and final regulations and a Civil Rights Impact Analysis. In a May 15, 2014 set of email messages, Meghan Kelly, Deputy Communications Director, provided you with copies of records responsive to your request. According to Ms. Kelly, the Executive Office has withheld certain responsive information pursuant to the common law attorney-client privilege and Exemption (b) of the Public Records Law. While the Executive Office cited the attorney-client privilege and Exemption (b) as the basis for withholding responsive information, it failed to provide any further explanation as to their applicability to the requested records. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 ( c) (emphasis added). See Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). It is my finding that the Executive Office initially failed to satisfy its burden in responding to your records request. The Executive Office provided no specificity with respect to the applicability of the privilege and exemption claims and is not permitted to issue a blanket denial without providing any further information with respect to the requested records. In a June 5, 2014 email message to an attorney on my staff, Deputy General Counsel Janet B. Fogel supplemented the Executive Office's initial response and stated that OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Ethan Handwerker SPR14/173 Page Two June 12, 2014 responsive information has been withheld pursuant to Exemption (d) of the Public Records Law. Exemption (d) Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7 (26)(d ) Exemption (d) is intended to avoid the disclosure of documents while policy positions are being developed and the deliberative process remains ongoing and incomplete. The deliberative process is insulated from scrutiny only until such time as the process is completed. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Furthermore, the preparation of and involvement in litigation by a public body entails the development of "policy positions" by that body, positions that are subject to change and refinement throughout the litigation process. The withholding of public records is permitted in so far as they concern the ongoing litigation or administrative proceedings of that public body. See Lafferty v. Martha's Vineyard Commission, Superior Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS, *10. This office has been made aware that you recently filed a complaint for civil action against the Executive Office before the Massachusetts Superior Court of Middlesex County. See Ethan Handwerker v. Commonwealth of Massachusetts, et al., Civil Action No. 2013-04995. While a motion to dismiss was granted, it is my understanding that you have appealed that decision and remain engaged in a matter of civil litigation with the Executive Office. It is my finding that the subject matter relating to your ongoing litigation has a direct correlation to the content of information included within the records requested by you. Whereas the responsive records relate to this ongoing litigation matter, the Executive Office may permissibly withhold these records pursuant to Exemption (d). Please be advised that the applicability of this exemption is based on the fact that the content of information requested by you directly correlates to the subject matter of your civil litigation matter. The exemption remains applicable regardless of the fact that your civil complaint does not seek relief from any prior records request you may have made to the Executive Office.

Mr. Ethan Handwerker SPR14/173 Page Three June 12, 2014 Whereas the Executive Office may permissibly withhold responsive records pursuant to Exemption (d), an analysis as to the applicability of the attorney-client privilege or Exemption (b) is not required. Accordingly, this administrative appeal is now closed. Supervisor of Records cc: Ms. Janet B. Fogel, Esq.