Ryan, Jillian v. Falmouth, Town of - Town Clerk (SPR 20150460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A, Williams Supervisor of Records

December 4, 2015 SPR15/460

Mr. D.M. Moschos, Esq.

Mirick, O’Connell, DeMallie & Lougee, LLP 100 Front Street

Worcester, MA 01608

Dear Attorney Moschos:

I have received the petition of Jillian M. Ryan, Esq. of Pyle Rome, Legal Counsel for the Town of Falmouth Firefighters Union (Union), appealing the response of the Town of Falmouth (Town) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Ryan requested a copy of prior drafts of a report prepared by the Town’s consultant, Matrix Consulting Group. The Town provided Attorney Ryan with a copy of the final report; however the draft copies of the report have been withheld pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d).

In 2014, the Town retained Matrix for the purposes of analyzing whether it should consolidate its Police, Fire, Marine and Environmental Services and Public Works dispatch functions. Matrix reviewed the existing dispatch functions by, among other things, interviewing personnel and managers, collecting and analyzing workload data, and surveying personnel receiving dispatch services. Matrix prepared a final report that contained its conclusions and findings. The final report is sixty-three pages in length and was provided to the Union.

Responses from the Town

Your May 18, 2015 letter informed Attorney Ryan that prior drafts are exempt from the public records law pursuant to Exemption (d) as deliberative process records. You stated, “since the draft reports were not ‘reasonably completed’ but were in fact only drafts of what eventually became the completed final product, the Union is not entitled to such drafts of the report. The Town has complied with the public records request to the extent required by law, by providing the Union with access to the Matrix Report.”

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914 www.sec.state.ma.us/pre

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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).

It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption).

Exemption (d) Exemption (d) allows the withholding of:

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. . 4, §7 (26)(d)

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. See Babets v. Sec’y of the Exec. Office of Human Servs., 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 Envtl. 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).

After this appeal was opened, you provided a second written response to this office dated June 29, 2015, on which Attorney Ryan was copied, to bolster the Town’s argument to support its Exemption (d) claim to withhold the draft reports in their entirety. You cited the recent Supreme Judicial Court (SJC) decision in DaRosa v. New Bedford, 471 Mass. 446, 448 (2015) and American Federation of Gov. v. U.S. Dept. of HHS, 63 F. Supp. 2d 104 (D.Mass 1999) to support your position. You claim the drafts are not final Town policy and their disclosure would irreparably damage the Town decision-making process by discouraging candid internal discussions before the final report was adopted.

In a letter to a member of my staff dated October 9, 2015, you claim drafts of documents “have been interpreted to fall directly within the deliberative privilege” and the deliberative privilege has been incorporated into Exemption (d). For this reason, you claim the drafts of the

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Matrix report may be withheld. You also claim the Babets decision is distinguishable from the facts of this appeal and cite DaRosa.

In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id.

The Town has not claimed that the responsive drafts were prepared in anticipation of litigation or trial.

In addition, the SJC stated “[w]e recognize that [E]xemption (d) protects documents from disclosure ‘only while policy is ‘being developed,’ that is, while the deliberative proves is ongoing and incomplete.’” Id. at 459 n. 16. (citing Babets, 403 Mass. at 237 n. 8). Further, the Babets Court stated “[t]he Legislature has thus chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available.” Babets, 403 Mass. at 237 n. 8.

As indicated in the Town’s June 29 response, Matrix prepared a final report that contained its conclusions and findings. As a result, the deliberative process is completed. Therefore, the Town may not withhold documents generated during the deliberative process under Exemption (d).

I find the Town failed to meet its burden of explaining with specificity how the responsive drafts, in their entirety, are exempt from disclosure under Exemption (d). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Accordingly, whereas the Town has not overcome the presumption that the requested records are public, the Town is hereby ordered, within ten (10) days, to provide Attorney Ryan with the requested records. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Attorney Ryan a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why an 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 pre@sec.state.ma.us.

If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a

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request for public records is expected to exceed ten dollars ($10.00), custodian of records shall

provide written good faith estimate). Once the fees are paid, you must provide the responsive records.

fh A. Williams

Supervisor of Records ce: Mr. Jillian M. Ryan, Esq.

Mr. Julian Suso, Town Manager