Wilson G. Dobson, P.E. v. Department of Conservation and Recreation (SPR 20170598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records Mayll,2017 SPR17/598 Bridget Connelly, Esq. Assistant General Counsel Department of Conservation and Recreation 251 Causeway Street, Suite 600 Boston, MA 02114 Dear Attorney Connelly: I have received the petition of Wilson Dobson, P.E. appealing the response of the Department of Conservation and Recreation (DCR) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 4, 2017 Mr. Dobson requested to inspect or obtain copies of: All documents including letters, memos, emails, reports and meeting summaries received by or authored by Jonathan Yeo, Director of the Division of Watershed Protection, and William Pula, in the Office of Watershed Management, for the period of January 1, 2016 through January 4, 2017, concerning: (a) The subject of allegedly illegal trails in the Ware River Watershed; (b) Mountain biking in the Ware River Watershed; ( c) Public access in the Ware River Watershed; and ( d) A copy of the map of alleged watershed protection zones used and referenced by Commissioner Leo Roy in his Ware River Watershed inspection of November 18, 2016. On April 4, 2016, Mr. Dobson requested to inspect or obtain copies of the documents that describe the Public Access Plan process for the currently underway update to the Ware River Watershed Public Access Plan. Previous appeals The records requested in Mr. Dobson's January 4th public records request were the subject of prior 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) and SPRl 7/475 Determination of the Supervisor of Records (April 20, 2017). I closed SPRl 7/475 One Ashburton Place, Room 17 19, Boston, Massachusetts 0210 8 • ( 61 7) 72 7-28 3 2 • Fax: ( 617) 72 7-5 914 sec.state.ma.us/pre• pre@sec.state.ma.us

Bridget Connelly, Esq. SPRl 7/598 Page 2 May 11, 2017 with the proviso that DCR provide Mr. Dobson with a response to support its Exemption ( d) claim to withhold records, clarify what other records besides emails that are in DCR' s custody are being withheld and, finally, provide Mr. Dobson with information such as the sender, recipient, subject line, date sent, or any other purely factual matters under Exemption ( d). DCR provided Mr. Dobson with a response on April 2st\ however, DCR still has not met its burden of specificity in supporting its Exemption ( d) claim, nor has DCR complied with the directives in my April 20th determination. As a result, Mr. Dobson appealed and the current appeal 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, § 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 of an exemption in order to withhold a requested record. G. L. c. 66, § lO(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. Exemption (d ) DCR informed Mr. Dobson in its April 28th response that DCR is withholding the draft outline of the public access plan update process pursuant to Exemption (d). It is my understanding that DCR is still withholding emails under Exemption ( d) and has not provided . Mr. Dobson with header information, such as sender, recipient, subject line, date sent, or any other purely factual matters in accordance with my April 20th determination. 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

Bridget Connelly, Esq. SPRl 7/598 Page 3 May 11, 2017 policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Exec. Office of Human Services, 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.). DCR maintains that the Public Access Plan Update Process draft outline does not contain reasonably complete factual studies or reports and that premature disclosure of the draft outline would taint the ongoing deliberative process. With regard to the email records, DCR's March 2nd email to Mr. Dobson merely states that DCR is withholding all emails concerning updates to the Public Access Plan due to policy positions, and that the emails do not contain reasonably completed factual studies or reports on which policies may be developed. DCR has not shown how disclosure of a redacted draft outline and redacted emails would taint the deliberative process. DCR has not met its burden of demonstrating that the draft outline and emails do not contain factual information. Furthermore, DCR has not complied with my previous determination to provide Mr. Dobson with all email header information. See SPRl 7/475 Determination of the Supervisor of Records (April 20, 2017). I find that DCR has not met its burden of proving with specificity why the draft outline and all email records must be withheld in their entirety pursuant to Exemption ( d). Burden ofs pecificity and duty to segregate Please be advised that the exemptions are narrowly construed and are not blanket in nature. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Accordingly, DCR is hereby ordered to provide Mr. Dobson with the records, redacted where necessary under Exemption ( d), in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response that accompanies the records 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.

Bridget Connelly, Esq. SPRl 7/598 Page 4 May 11, 2017 Sincerely, ~.~ Supervisor of Records cc: Wilson Dobson, P.E.