Sam Pearson v. Office of the Attorney General - Environmental Protection Division (SPR 20160104)

The Commonwealth of Massachusetts William FranCis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 10, 2016 SPR16/104 Ms. Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Sam Pearson of Greenwire appealing the response of Office of the Attorney General (AGO) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Pearson requested a copy of communications sent by and between specifically named persons from April15, 2015 to January 28, 2016 (the date of the request), concerning S. 697 ('Frank R. Lautenberg Chemical Safety for the 21st Century Act'), S. 725 ('Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act') and H.R. 2576 ('modernization of the Toxic Substances Control Act' (TSCA)). The AGO denied Mr. Pearson's request, citing Exemption (d) ofthe Public Records Law. G. L. c. 4, § 7 (26) (d). Mr. Pearson appealed. 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) In its February 9, 2016letter the AGO advised that the modernization ofTSCA legislation involves an on-going deliberative process in which the AGO is engaged. On March OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Lorraine A.G. Tarrow, Esq. SPR16/104 Page2 March 10, 2016 1, you confirmed in a conversation with an attorney on my staff, that the deliberation remains ongoing. Exemption (d) applies to: 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. 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). Based upon the above, I find that the AGO has met its burden of explaining that any communications held by the AGO concerning the TSC legislation ay be withheld as deliberative and policy making pursuant to Exemptio (d) e P lie Records Law. cc: Mr. Sam Pearson