Todd Wallack v. Office of the District Attorney - Norfolk District (SPR 20160261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April27, 2016 SPR16/261 Ms. V arsha Kukafka, Esq. Assistant District Attorney Office of the District Attorney-Norfolk District 45 Shawmut Road Canton, MA 02021 Dear Attorney Kukafka: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Office of the District Attorney-Norfolk 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 21, 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, § lO(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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Varsha Kukafka, Esq. SPR16/261 Page 2 April27, 2016 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 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 "[u]pon review, we have concluded that the information you seek is exempt under the public records statutory exemption for policy deliberation, G. L. c. 4, § 7(26)(d)." You further explain "[t]here is no completed factual study or report beyond the correspondence and the cost estimate that we previously provided to you and to the Supervisor of Public Records. You claim Exemption (d) applies to these records "because the information you seek concerns inter-agency and/or intra-agency communications related to ongoing policy positions and responses" regarding the January 6, 2015 request. You cite the Supreme Judicial Court (Court) decision in DaRosa v. New Bedford, 471 Mass. 446, 448 (2015) in support of your position. You also claim the records contain the DAO's "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 of Revenue 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 oflitigation 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."' I d. 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. Varsha Kukafka, Esq. SPR16/261 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 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 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 DAO 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. 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 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. 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.

Ms. Varsha Kukafka, Esq. SPR16/261 Page 4 April27, 2016 Supervisor ofRecords cc: Mr. Todd Wallack