Joyce Rowley v. New Bedford, City of - Office of The City Solicitor (SPR 20160188)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 23, 2016 SPR16/188 Ms. Lisa A. Presby Contract Specialist City of New Bedford Office of the City Solicitor 133 William Street, Room 203 New Bedford, MA 02740-6163 Dear Ms. Presby: I have received the petition of Joyce Rowley appealing the response of the City ofNew Bedford (City) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Ms. Rowley requested records related to the Buttonwood Zoo (Zoo), specifically "a copy ofthe [Zoo] master plan in whatever form it may be in and wherever it may be found." In a response dated March 7, 2016, the City denied access to the record under Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). This request was the subject of a previous appeal. See SPR15/095 Determination of the Supervisor of Records (April15, 2015). 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) The City is withholding the entirety ofthe responsive record under 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. Lisa A. Presby SPR16/188 Page2 March 23, 2016 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 March 7 response to Ms. Rowley indicates "the draft zoo master plan you requested has not been finalized and is still being deliberated upon by the [Z]oo and other city agencies." Further, you explain "not all City Councilors have reviewed it, and the mayor has not approved it." You explain the "master plan contains preliminary ideas by zoo personnel that have not been fully considered by other relevant city-decision makers" and "[t]o release the draft master plan now would be premature and would interfere with the deliberative process." However, the City's response does not explain with specificity how the entirety of the responsive record may be withheld; particularly because "reasonably completed factual studies or reports on which the development of such policy positions has been or may be based" are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). It is unclear whether the responsive Zoo master plan contains any factual information does not fall under Exemption (d). Also, it is unclear how deliberations regarding this matter continue to be ongoing in a manner similar to the way in which the City responded in April of2015. See SPR15/095. As a result, the City has failed to explain how the responsive Zoo master plan is exempt from disclosure in its entirety pursuant to 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). In a conversation with an attorney on my staff, you indicated the City would be willing to provide a supplemental response to Ms. Rowley that addresses the issues discussed above.

Ms. Lisa A. Presby SPR161188 Page 3 March 23, 2016 Conclusion Accordingly, I will consider this appeal closed with the proviso that within ten (1 0) days, the City provides Ms. Rowley 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 ofthe responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Rowley 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 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, § 10 (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). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to 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 request. Please contact my office directly at the telephone number provided in this determination for rther information. cc: Ms. Joyce Rowley Ms. Mikaela A. McDermott, Esq.