C.J. Ferry v. Fall River, City of - Office of the Corporation Counsel (SPR 20161163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 20, 2016 SPR16/1163 Joseph I. Macy, Esq. Office of the Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Macy: I have received the petition of C. J. Ferry of Spindle City Straight Talk appealing the response ofthe City of Fall River (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Ferry requested a copy of: 1. All materials presented to all Charter Commission (Commission) members, 2. All materials provided to the Commission by the consultant and/or authorized representatives, and 3. All portions of the Charter that have been approved by the Commission for presentation to the City voters in November 2017. Response by the City The City provided portions of the Charter that have been presented to the public, but is withholding materials presented to the Commission members, including materials from the consultant. In its December 9, 2016 response, the City continues to claim Exemption (d) to withhold portions of the Charter this is in draft format and has not been presented to the public for review and discussion at an open meeting. Mr. Ferry appealed the December 9 response. Prior appeal The requested records in Mr. Ferry's requests numbered 1 and 2 were the subject of a prior appeal and determination by this office. See SPR16/918 Determination of the Supervisor of Records (October 27, 2016). In the October 27 determination, I closed the appeal with the proviso that the City provided Mr. Ferry with a revised response concerning the Exemption (d) claim, explaining how this exemption applies to withhold the requested records. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Joseph I. Macy, Esq. SPR1611163 Page 2 December 20, 2016 The Public Records Law 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 ofthe 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). 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. Exemption (d) The City continues to claim that it may withhold the records that are in draft format and that have not been presented to the voters are not subject to the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause 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. Babets v. Secretary of the Executive Office ofHuman Services, 403 Mass. 230,237 n.8 (1988). (Emphasis added). 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 Environmental 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 City has failed to specifically support its Exemption (d) claim and has failed to explain what records it has in its custody that it is withholding. The City still has not proved how release of the records will taint the deliberative process in revising the Charter. Accordingly, I find that the City has failed to meet its statutory and regulatory obligation under the Public Records Law.

Joseph I. Macy, Esq. SPR16/1163 Page 3 December 20, 2016 Order I find the City has failed to properly respond to a request for public records. Accordingly, the City is hereby ordered to provide Mr. Ferry with a detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to his office. It is preferable to send an electronic copy of this response to this office at r s c.state.ma.us. cc: C. J. Ferry