Eric Rasmussen v. Executive Office of Education - Department of Early Education and Care (SPR 20170722)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 6, 2017 SPR17/722 Kathleen Hart Director of Communications and External Affairs Department of Early Education and Care 51 Sleeper Street, 4th Floor Boston, MA 02210 Dear Ms. Hart: I have received the petition of Eric Rasmussen of Boston 25 News appealing the response of the Department of Early Education and Care (Department or EEC) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 20, 2017 Erin Smith of Boston 25 News requested "[a]ll investigative reports and documents concerning the [Department]'s investigation into the preschool and daycare" regarding an identified church, school, and incident. Ms. Smith also requested emails sent between the Department and the Governor's office regarding this investigation. The Department provided a response dated May 10, 2017 in which it provided records but withheld certain information under Exemption ( c) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(c). The Department provided a supplemental response dated May 25, 2017 in which it withheld "Investigation report #00004179 (Bethany Assembly of God - Death of a Child complaint)" under Exemption (d). G. L. c. 4, § 7(26)(d). Mr. Rasmussen appealed, "specifically, the exclusion of investigation report #00004179 (Bethany Assembly of God - Death of a Child complaint)." 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 orqer 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 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

Kathleen Hart SPR17/722 Page 2 June 6, 2017 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, 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) 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 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. 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). In the Department's May 25th response you indicate "[a]lthough EEC has the responsive materials, the records are being withheld as exempt pursuant to M.G.L. c. 4, §7(26)(d), the deliberative process exemption, covering inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency." However, it is unclear how there are no purely factual matters, or "reasonably completed factual studies or reports on which the development of such policy positions has been or may be

Kathleen Hart SPRl 7/722 Page 3 June 6, 2017 based" within the records that must be disclosed. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Further, the Department must provide additional information regarding the nature of the deliberation. I understand a Public Records Division staff attorney contacted you and provided a copy of the file associated with this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Rasmussen 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: Eric Rasmussen