McKinnon, Zachary v. MassBay Community College (SPR 20140384)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 3, 2014 SPR14/384 Mr. Kenneth A. Tashjy, Esq. Massachusetts Community College System Middlesex Community College 591 Springs Rd., Bldg. 2 Bedford, MA 01730 Dear Mr. McKinnon: This office has received the petition of Zachary McKinnon, Paralegal for the law firm Campbell Campbell Edwards & Conroy, appealing the response of the Massachusetts Bay Community College (College) to his June 20, 2014 request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, Mr. McKinnon requested copies of: 1. All insurance agreements under which any person carrying on an insurance business may be able to satisfy any or all of a judgment which may be entered in Manns v. Mass Bay Community College, C.A. No. 2011-00555-B, currently pending in Norfolk Superior Court, or to indemnify or reimburse for payments made to satisfy the Judgment; 2. All employment practices, discrimination, and directors and officer's insurance policies providing coverage to Mass Bay Community College and/or its President for the period January 1, 2008 to the present; and 3. All excess insurance policies providing coverage to Mass Bay Community College and/or its President for the period January 1, 2008 to the present. In a July 3, 2014letter, the College denied this request, stating that responsive records were being withheld as they relate to a matter in active litigation. Mr. McKinnon appealed this response, stating that it failed to state a specific exemption to the Public Records Law. In a September 9, 2014 email to an attorney on my staff, and in an effort to meet the College's burden of specificity, you supplemented the College's original response by stating that the responsive records would be withheld pursuant to Exemption (d) of the Public Records Law. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Kenneth A. Tashjy, Esq. SPR14/384 Page Two October 3, 2014 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 ofthe Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). 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 ofthat public body. See Lafferty v. Martha's Vineyard Commission, Superior Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS, *10. I find, however, that you have not met your burden under the law to state with specificity how records related to insurance policies and employment practices are specifically related to the subject matter of the litigation referenced both by you and Mr. McKinnon. 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 also 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). Your response did not contain the specificity required in a denial of access to public records. In your response you merely stated that Mr. McKinnon's employer represents a client currently engaged in litigation against the College. The holding in Lafferty permits records custodians to withhold records pursuant to Exemption (d) that are related to deliberations associated with litigation. Accordingly, the College is hereby ordered, within ten (10) day ofthis order, to provide Mr. McKinnon with the requested records. If the College maintains that any portion of the responsive records are exempt from disclosure it may, within thirty (30) days provide to Mr. McKinnon and this office a written explanation, with specificity, how a particular exemption applies to each record.

Mr. Kenneth A. Tashjy, Esq. SPR14/384 Page Three October 3, 2014 In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Zachary McKinnon