Todd Wallack v. Office of the District Attorney - Suffolk County (SPR 20160259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April27, 2016 SPR16/259 Ms. Dara Z. Kesselheim, Esq. Assistant District Attorney Office of the District Attorney - Suffolk District One Bullfinch Place, Suite 300 Boston, MA 02114-2921 Dear Attorney Kesselheim, I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Office of the District Attorney- Suffolk District (DAO) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on March 14, 2016, Mr. Wallack requested "copies of any email, letters or other correspondence regarding [Mr. Wallack's] January 6, 2015 public records requests for criminal court data (both internally or externally) except for correspondence that has already been shared with [Mr. Wallack]." In a response dated March 24, 2016, the DAO denied his request claiming that the responsive records may be withheld under the deliberative process exemption to the Public Records Law. G. L. c. 4, § 7(26)(d). 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). Exemption (d) In its March 24 response, the DAO claims responsive records may be withheld under Exemption (d). Exemption (d) permits 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Dara Z. Kesselheim, Esq. SPR16/259 Page 2 April27, 2016 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 a 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 DAO states "[i]t is this [DAO's] position that all materials responsive to your March 14, 2016 request are exempt from disclosure under the 'policy deliberation' exemption to the public records law." Further, you explain, "[n]one of the materials responsive to your request are 'reasonably completed factual studies or reports' that would fall outside [E]xemption (d). You also cited the Supreme Judicial Court (Court) decision in DaRosa v. New Bedford, 471 Mass. 446, 448 (2015) in support of your position. In DaRosa, the Court concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. As the Court explained, "[w ]e recognize that [E]xemption (d) protects documents from disclosure 'only while policy is 'being developed,' that is, while the deliberative proves is ongoing and incomplete."' Id. at 459 n. 16 (citing Babets, 403 Mass. at 237 n. 8). Further, the Babets Court stated "[t]he Legislature has thus chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available." Babets, 403 Mass. at 237 n. 8. In its response the Office provided no information to support a contention that any records responsive to Mr. Wallack's request are related to litigation. Accordingly, I find the Court's holding DaRosa does not apply to records responsive to Mr. Wallack's request. Further, I find the DAO failed to meet its burden of explaining with specificity how the responsive records, in their entirety, are "deliberative" as required by 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). It is unclear what, if any deliberation remains ongoing related to Mr. Wallack's request that would necessitate withholding pursuant to

Ms. Dara Z. Kesselheim, Esq. SPR16/259 Page 3 April27, 2016 Exemption (d). Finally, I find the Office failed to meet its burden in explaining how none of the responsive records contain purely factual information that would mandate disclosure. See Mink, 410 U.S. at 89; G. L. c. 66, § 10(a)(any non-exempt, segregable portion of a public record is subject to mandatory disclosure). I understand an attorney on my staff contacted you about this matter. Conclusion Accordingly, the DAO is hereby ordered, within ten (10) days ofthis order, to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the DAO maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Wallack 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 upo request. Please contact my office directly at the telephone number provided in this de ~inat on for further information. 1 We tr 1 yours, j . Sh Williams cc: Mr. Todd Wallack