Vaccaro, Adam v. Boston, City of - Mayor's Office (SPR 20150380)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 15,2015 SPRlS/380 Ms. Laura Oggeri Chief Communications Officer Office of Mayor Martin J. Walsh One City Hall Square, Suite 500 Boston, MA 02201 Dear Ms. Oggeri: I have received the petition of Adam Vaccaro of Boston. com appealing the response of the City of Boston (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Vaccaro requested copies of "financial presentations or planning documents made or submitted to the mayor's office, regarding the building of a soccer stadium in South Boston, in either of two meetings with the Kraft Sports Group Finance Team in December of2014 and March 2015." In a response dated April30, 2015 the City denied his request in its entirety citing Exemption (d), the deliberative process exemption to the Public Records Law. G. L. c. 4, § 7 (26) (d). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). Exemption (d) In your letter, you contend that responsive records are exempt from disclosure pursuant to Exemption (d) ofthe Public Records Law. Exemption (d) applies to: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Laura Oggeri SPR15/380 Page Two July 15,2015 inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause 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) 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 ofHuman 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.). Your letter states that "[d ]iscussions had in both meetings focused on proposed financing related to the potential building of soccer stadium in Boston. The Plan itself is currently in the process of being developed and release of the records sought would be premature as it would interfere with the City's development and/or negotiation of this specific proposal". You did not state whether the responsive records contained any factual reports. 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); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the City did not contain the specificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to each requested record. I find the City has failed to meet its burden of specificity in denying access to public records. Accordingly, whereas City has not overcome the presumption that the requested records are public, the City is hereby ordered, within ten (1 0) days of this order, to provide Mr. Vaccaro with the requested records. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to REQUESTER a written explanation, with specificity, how a particular exemption applies to each record.

Ms. Laura Oggeri SPR15/380 Page Three July 15,2015 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at re sec.state a. us. w Supervisor of Records cc: Mr. Adam Vaccaro