Wilson G. Dobson, P.E. v. Department of Conservation and Recreation (SPR 20170310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2017 SPR17/310 Bridget Connelly, Esq. Assistant General Counsel Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 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 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Dobson requested "all documents including letters, memos, e-mails, reports, and meeting summaries" concerning two specifically identified individuals within the Department concerning various aspects of concern in the Ware River Watershed. Previous appeal This request was the subject of a previous appeal. See SPRl 7 /173 Determination of the Supervisor of Records (February 15, 2017). I closed SPRl 7/173 with the understanding the Department would provide a supplemental response to Mr. Dobson. I understand Mr. Dobson obtained certain information, but as indicated in its March 2, 2017 email to Mr. Dobson, a representative from the Department explains that they are "withholding all emails concerning updates to the Ware River Watershed Public Access Plan under M.G.L. c. 4, § 7, cl. 26(d)." This appeal (SPRl 7 /310) was opened in light of Mr. Dobson' s petition. 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, § lO(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). 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 7/310 Page2 March 16, 2017 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. 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Exemption (d) In your November 4, 2016 response, you contend that the entirety of the requested records may be withheld from disclosure pursuant to Exemption (d) of 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 subclause 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. 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). In an email dated March 2, 2017, the Department indicated its intention to withhold certain records, claiming that "[t]he emails being withheld concern policy positions being developed regarding updates to the watershed's Public Access Plan." Subsequent to a conversation with a Public Records Division staff member, you indicated the Department would

Bridget Connelly, Esq. SPR17/310 Page 3 March 16, 2017 provide a supplemental response that, in particular, addresses the applicability of Exemption ( d) as well as the other concerns that Mr. Dobson has. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide said response 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. Mr. Dobson may appeal the substantive nature of the Department's response within ninety (90) days. See C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Bridget Connelly, Esq.