Erin Smith v. Department of Early Education and Care (SPR 20170900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2017 SPR17/900 Felicia Sullivan, Esq. General Counsel and Records Access Officer Department of Early Education and Care 51 Sleeper Street, 4th Floor Boston, MA 02210 Dear Attorney Sullivan: I have received the petition of Erin Smith 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 April20, 2017 Ms. Smith 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. · Previous appeal This request was the subject of a previous appeal. See SPR17/722 Determination of the Supervisor of Records (June 6, 20 17). SPR17/722 specifically pertained to the Department's withholding of the "Investigation report #00004179 (Bethany Assembly of God- Death of a Child complaint)." I closed the appeal by ordering the Department to provide Boston 25 News with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided a response dated June 21, 2017 in which it continues to withhold the above referenced investigation report under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Ms. Smith appealed the withholding ofthis report and SPR17/900 was opened as a result. 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, § 1O A( d); 950 C.M.R. 32.03(4 ). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Felicia Sullivan, Esq. SPR17/900 Page 2 July 17, 2017 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 ofthe 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 June 21st response you indicate "[t]he request relates to an internal write up on a matter that was never investigated and is incomplete. The write up is stored under that report number, but the report is in draft form, has not been finalized and is still under internal review by management." You further assert that"[d ]espite the fact that the Department did not create an investigation report, the write up is being drafted in anticipation of future litigation. The report may be released when it is complete." The Department has not met its burden to establish that there is an ongoing deliberative process; for example, it does not provide information regarding any potential litigation. Further, it remains unclear how there are no purely factual matters, or "reasonably completed factual

Felicia Sullivan, Esq. SPR17/900 Page 3 July 17, 2017 studies or reports on which the development of such policy positions has been or may be 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). 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 Ms. Smith with the responsive records 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. In camera review In the alternative, in order to facilitate a determination as to the applicability of exemption claims made by the Department, the Department may provide this office an unredacted copy of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review ofthe documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Felicia Sullivan, Esq. SPR17/900 Page 4 July 17, 2017 The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Erin Smith