Stephanie Ebbert v. Boston, City of - Mayor's Office (SPR 20160140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/140 Ms. Caroline Driscoll, Esq. Senior Assistant Corporation Counsel City of Boston City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Stephanie Ebbert of The Boston Globe appealing the response of the City of Boston-Mayor's Office (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Ebbert requested a copy ofthe recommendations of the Mayor's Universal Pre-K Advisory Committee and any report provided by the Committee, whether in formal or informal form. The City denied Ms. Ebbert's request, citing Exemption (d) of the Public Records Law. Ms. Ebbert 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). Ten-day response requirement Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. All records custodians must OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Caroline 0. Driscoll, Esq. Page 2 March 11, 2016 comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Obligation to inform denied requester of administrative remedies The Public Records Access Regulations (Regulations) state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1). In her January 22, 2016 response, Bonnie McGilpin failed to notify Ms. Ebbert of her administrative remedies under the Public Records Law. Exemption (d) Ms. McGilpin advised Ms. Ebbert that the responsive records are being withheld under Exemption (d) of the Public Records Law, but failed to specifically explain how and why the exemption applies to withhold the records in their entirety. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause 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 ofthe Executive Office of Human 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.). The City is advised that to comply with the Public Records Law and Regulations it 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. In a telephone conversation with a member of my legal staff on March 10, you were advised that the City should provide the record(s) or specifically meet its burden of supporting its exemption claim with a detailed response.

Ms. Caroline 0. Driscoll, Esq. Page 3 March 11, 2016 Order Accordingly, whereas the City has not met its burden of specificity, it is hereby ordered, within ten (10) days of this order, to provide Ms. Ebbert with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Ebbert a written explanation, with specificity, how a particular exemption applies to each record or each portion of a record. 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 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, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). To assist in responding to requests for public records I advise the City to review our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon re uest. Please contact my office directly at the telephone number below for further infor t~on. rs, Supervisor of Records cc: Ms. Stephanie Ebbert