Wiesenberg, Peggy v. Boston, City of - Law Department (SPR 20150862)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 31, 2015 SPRlS/862 Ms. Caroline Driscoll, Esq. Senior Assistant Corporation Counsel City of Boston - Law Department City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Peggy Wiesenberg on behalf of QUEST, appealing the response ofthe 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. Wiesenberg requested nine (9) categories of records related to the Boston Compact. In a response dated October 30, 2015, the City provided certain responsive records and withheld others pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Ms. Wiesenberg appealed this response. Open Meeting Law Ms. Wiesenberg raises several issues in her appeal petition including those that invoke the Open Meeting Law. I understand Ms. Wiesenberg has filed an Open Meeting Law complaint. Whereas the interpretation of the Open Meeting Law falls within the authority of the Division of Open Government in the Office ofthe Attorney General (AGO), I decline to opine on these matters. Issues raised in Ms. Wiesenberg's appeal petition Ms. Wiesenberg's appeal petition raises other matters concerning the Public Records Law. I will discuss each below. 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Caroline Driscoll, Esq. SPR15/862 Page Two December 31, 2015 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Scope ofs earch Ms. Wiesenberg indicates that, based on the City's response, it is unclear whether it searched for all responsive records that fall within the specified time period in her request. The time period for the request is 2011 to the present. Withholding ofr ecords under Exemption (d) Ms. Wiesenberg also objects to the City's withholding of nine (9) responsive records under Exemption (d) ofthe Public Records Law. 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. 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 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). In the October 30 response, the City explains that is withholding nine (9) documents under Exemption (d) because the records "discuss policy matters related to the Boston Compact, which are still under development. The City recognizes that these records shall be subject to release upon finalization of any policy or program related to the Boston Compact." However, the City has yet to explain how these documents may be withheld, in their entirety, pursuant to Exemption (d). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,

Ms. Caroline Driscoll, Esq. SPR15/862 Page Three December 31, 2015 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any purely factual information is subject to mandatory disclosure. See G. L. c. 66, § 10(a Index ofw ithheld records Ms. Wiesenberg asked the City to provide an index of the withheld documents. In her appeal petition, she also requests that I order the City to provide this index. Only the Supervisor of Records (Supervisor) may require a custodian to compile an index of requested records; this order is made by the Supervisor to aid in review of a public records appeal. The determination as to whether to order an index lies solely in the hands of the Supervisor. 950 C.M.R. 32.08(7). The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. I decline to order the City to provide an index of the withheld documents at this time; although the City is advised that providing an index may assist in meeting its burden under the law. Accordingly, I will consider this portion of the appeal closed. Redactions within one particular document Ms. Wiesenberg's appeal also relates to a sixteen (16) page document the City produced. Ms. Wiesenb erg states that it appears portions of this document may be redacted, but it is unclear to Ms. Wiesenberg if that is the case. 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Conclusion I understand that an attorney on my staff discussed this appeal with you and sent you a copy of Ms. Wiesenberg' s appeal petition. You indicated you would provide a supplemental response addressing the issues Ms. Wiesenberg raises. As a result, I will consider this appeal closed with the proviso that, within ten (1 0) days, the City provides Ms. Wiesenberg with a supplemental response that addresses the issues in her appeal. This response must be made in a manner consistent with the Public Records Law, its Regulations, and this Determination. A copy of the 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.

Ms. Caroline Driscoll, Esq. SPR15/862 Page Four December 31, 2015 cc: Ms. Peggy Wiesenberg