Todd Wallack v. Massachusetts District Attorneys Association (SPR 20160260)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April27, 2016 SPR16/260 Ms. Tara L. Maguire Executive Director Massachusetts District Attorneys Association One Bulfinch Place, Suite 202 Boston, MA 02114 Dear Attorney Maguire: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Massachusetts District Attorneys Association (MDAA) 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 your association may have regarding my January 6, 2015 public records requests to the 11 District Attorneys for criminal court data (including any attachments)." In a response dated March 25, 2016, the MDAA denied his request claiming that the responsive records may be withheld under Exemption (d). 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 MDAA 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. Tara L. Maguire SPR16/260 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 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, § 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 MDAA states "[u]pon review, MDAA concludes that the information you seek is exempt from disclosure pursuant to G. L. c. 4, § 7(26)(d)-the deliberative process exemption." In addition, you indicate Exemption (d) applies the responsive records because "the information you seek concerns ongoing inter-agency or intra-agency communications that relate to policy positions being developed by the District Attorneys and MDAA that relate to your January 6, 2015 public records requests to the 11 District Attorneys." You cite the Supreme Judicial Court (Court) decision in DaRosa v. New Bedford, 471 Mass. 446, 448 (2015) in support of your position. You further explain "[t]here is no completed factual study or report, and MDAA understands that the January 6, 20 15 public records requests to the 11 District Attorneys remain ongoing." You also claim the records contain "work-product, mental impressions, and attorney client communications." You cite Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444,461 (2007) and Commissioner ofRevenue v. Comcast Corp., 453 Mass. 293, 311- 319 (2009) in support of this 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 23 7 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.

Ms. Tara L. Maguire SPR16/260 Page 3 April27, 2016 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 MDAA 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 Exemption (d). 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 also find the MDAA has not established how the responsive records may be withheld under the common law attorney-client privilege. Suffolk, 449 Mass. at 450 n.9. I understand an attorney on my staff contacted you about this matter but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the MDAA 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 MDAA maintains that any portion of the 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.

Ms. Tara L. Maguire SPR16/260 Page 4 April27, 2016 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 £ rth r information. cc: Mr. Todd Wallack