Wilson G. Dobson, P.E. v. Department of Conservation and Recreation (SPR 20170173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 15, 2017 SPR17/173 Bridget Connelly, Esq. Department of Conservation and Recreation 251 Causeway Street, Suite 600 Boston, MA 02114-2119 Dear Attorney Connelly: I have received the petition of Wilson Dobson appealing the response of The Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dobson requested "All documents including letters, memos, e-mails, reports, and meeting summaries received by or authored by Jonathan Yeo, Director, Division of Watershed Management for the period of January 4, 2017, concerning: 1). The subject of allegedly illegal trails in the Ware River Watershed; 2). Mountain biking in the Ware River Watershed; 3). Public access in the Ware River Watershed; a copy of the map of alleged watershed protection zones used and referenced by Commissioner Leo Roy in his Ware River Watershed inspection ofNovember 18, 2016." The Department provided certain responsive records but denied others under Exemption (d) of the Public Records Law G. L. c. 4, § 7(26)(d). 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, § lOA(d); 950 C.M.R. 32.03(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 ofan exemption in order to withhold a requested record. G. L. c. 66, § 1O (b )(iv), 950 C.M.R. 32.06(3 ); 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). 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. 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

Bridget Connelly, Esq. SPRl 7/173 Page2 February 15, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian 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. Exemptions 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 maybe 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, § 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 Department explains "[t]he emails being withheld concern policy positions being developed regarding updates to the watershed's Public Access Plan. However, the Department must explain whether any purely factual, non-exempt, segregable portion of the responsive records can be provided. See G. L. c. 66, § lO(a); 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). I understand a member of my staff contacted you and provided a copy of the file associated with this appeal. You indicated the Department would provide a supplemental response.

Bridget Connelly, Esq. SPRl 7/173 Page 3 February 15, 2017 Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Dobson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Rebecca S. Murray Supervisor of Records cc: Mr. Wilson Dobson