Amelia Pak-Harvey v. Lowell, City of - Law Department (SPR 20160212)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 7, 2016 SPR16/212 Mr. James P. Hall, Esq. Qua, Hall, Harvey & Walsh 25 Fletcher Street Chelmsford, MA 01824 Dear Attorney Hall: I have received the petition of Amelia Pak-Harvey of The Lowell Sun appealing the response of the City of Lowell- School Committee (Committee) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Ms. Pak-Harvey requested Executive Session minutes related to union contract negotiations and grievances. Previous appeal This request is related to the subject matter of a previous appeal. See SPR16/028 Determination of the Supervisor of Records (February 8, 2016). In my February 8 determination, I closed the appeal subsequent to the Committee's provision of written responses dated January 19,2016, January 20,2016, and January 25,2016. In addition, I recommended the parties contact the Office of the Attorney General (AGO) regarding a determination as to the status of executive session minutes. See G. L. c. 30A, § 23. Ms. Pak-Harvey appealed to this office, indicating she is "appealing the substance" of the response and "not a lack of response." It should be noted that subsequent to my February 8 determination, Ms. Pak-Harvey again requested similar records on March 4, 2016. She requested "any executive session minutes related to contract negotiations with the United Teachers of Lowell and Lowell School Administrators Association." You responded on the same day by indicating you would update Ms. Pak-Harvey on the status of her request. Failure to meet burden tQ withhold responsive records In the Committee's January 25 response, you indicate it is withholding the requested minutes due to a fact-finder's order of non-disclosure as well as Exemption (d) ofthe Public OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. James P. Hall, Esq. SPR16/212 Page 2 April 7, 2016 Records Law. G. L. c. 4, § 7(26)(d). Subsequent to the opening of this appeal, you informed this office that the lawfulpurposes of the relevant executive sessions appear to be over, particularly in light of the fact the parties signed a Memoranda of Agreement. Therefore, I will opine on the Committee's exemption claims under the Public Records Law. See G. L. c. 30A, § 22(±). 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). I find the Committee has not met its burden to explain how it may withhold the responsive records due to a fact-finder's order of non-disclosure because it does not demonstrate the applicability of a Public Records Law exemption to this circumstance. Exemption (d) In its January 25 response, the Committee claims the responsive records may also be withheld under Exemption (d). 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, §

Mr. James P. Hall, Esq. SPR16/212 Page 3 April 7, 2016 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 Committee cites Exemption (d) and certain case law but does not explain, with specificity, how Exemption (d) applies to withhold the responsive records in their entirety. Further, in light of the signed Memoranda of Agreement, the Committee has not established how the deliberative process is ongoing as required by Exemption (d). As a result, the Committee has failed to explain how the responsive records, in their entirety, may be withheld 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). Conclusion For the reasons discussed above, the Committee is hereby ordered, within ten (1 0) days, to provide Ms. Pak-Harvey with the responsive records. If the Committee maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Pak-Harvey 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(a),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 further information.

Mr. James P. Hall, Esq. SPR16/212 Page 4 April 7, 2016 cc: Ms. Amelia Pak-Harvey Ms. Christine P. O'Connor, Esq. Mr. Kevin Manganaro, Esq., Division of Open Government