Smith, Erin v. Boston, City of - Mayor's Office (SPR 20150645)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords December 11, 2015 SPRlS/645 Ms. Caroline Driscoll, Esq. Assistant Corporation Counsel City of Boston-Law Department City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Erin Smith of behalf of the Boston Herald, appealing the response of the City of Boston (City) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Smith requested copies of all emails sent by the City's Chief of Policy Joyce Linehan from November 1, 2014 to February 1, 2015. Ms. Smith later narrowed her request to three specific dates. The City provided 119 emails and withheld 27 emails claiming that they are exempt pursuant to the common law attorney client privilege and others are exempt pursuant to Exemption (d), the deliberative process exemption. In a prior determination, I ordered the City to provide all responsive records to Ms. Smith in a manner consistent the Public Records Law and its Regulations. See SPR15/263 Determination of the Supervisor of Records (May 15, 2015). Ifthe City maintained that any portion of the responsive records were exempt from disclosure it was ordered, within ten ( 10 ) days provide to Ms. Smith a written explanation, with specificity, how a particular exemption applies to each withheld record with along with a custodial index. On July 27, 2015 the City provided a Ms. Smith with a custodial index. The Public Records Law states, "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); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Exemption (d) Exemption (d) allows the withholding of: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Caroline Driscoll, Esq. SPR15/645 Page Two December 11, 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)(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 ofHuman 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). 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 the requested records. As a result, I find the City has yet to meet its burden to provide Ms. Smith a written explanation, with specificity, how Exemption (d) or the attorney client privilege applies to withhold each record in its entirety. Accordingly, the City is hereby ordered, within ten ( ) days, to provide all remaining responsive records, or a written explanation, with specificity ow a particular exemption or the attorney-client privilege applies to each withheld recor cc: Ms. Erin Smith