Wilson G. Dobson, P.E. v. Department of Conservation and Recreation (SPR 20170475)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 20, 2017 SPR17/475 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 § 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" concerning two identified individuals within the Department relating to various aspects of concern in the Ware River Watershed. Previous appeal This request was the subject of previous appeals. See SPRl 7/173 Determination of the Supervisor of Records (February 15, 2017); See SPRl 7/310 Determination of the Supervisor of Records (March 16, 2017). I closed SPRl 7 /310 with the proviso that the Department provide a supplemental response to Mr. Dobson. The Department provided a response dated April 4, 2017 in which it withheld responsive emails under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26). Mr. Dobson petitioned this office and SPRl 7/475 was opened. 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). 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the 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. SPRI 7/475 Page 2 April 20, 2017 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) 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 its April 4th response, the Department indicates it provided certain responsive records but withheld "all emails concerning updates to the Ware River Watershed Public Access Plan" under Exemption (d). The Department further states "[t]he withheld emails concern internal preliminary policy discussions regarding the update to the watershed's Public Access Plan. These internal preliminary policy discussions precede the public participation phase of the Public Access Plan process which is expected to begin in fall 2017." However, the nature of the policy discussions and related recommendations on legal and policy matters remains unclear. In addition, the Department has not met its burden to withhold information such as the sender, recipient, subject line, date sent, or any other purely factual matters under Exemption (d). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90

Bridget Connelly, Esq. SPR17/475 Page 3 April 20, 2017 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Further, in his appeal petition, Mr. Dobson indicates that the Department's response "only addressed emails, but my request was broader encompassing all applicable documents generated by [the Department]." The Department must clarify whether it possesses any other responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). I understand a Public Records Division staff attorney contacted you and you indicated the Department would provide a supplemental response to Mr. Dobson. 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 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bridget Connelly, Esq.