Katherine K. Graham v. Executive Office of Housing & Economic Development (SPR 20171531)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 8, 2017 SPR17/1531 Ricks Frazier, Esq. Executive Office of Housing & Economic Development 1 Ashburton Place, Room 2101 Boston, MA 02108 Dear Attorney Frazier: I have received the petition of Katherine Graham, Esq. on behalf of her client Spencer Soper, both of Bloomberg L.P., appealing the response of the Executive Office of Housing and Economic Development (EOHED) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 22, 2017, Mr. Soper requested "correspondence between department representatives and Amazon.com regarding the company's search for a location for new headquarters, including documents, reports and agreements shared as part of that correspondence." Mr. Soper mentioned that "[t]his request includes, but not limited to, any non-disclosure agreements or request for non-disclosure agreements from Amazon." The EOHED provided a response dated October 3, 2017, in which it denied access to the records pursuant to Exemptions (c), (d), (e), (g), and (h) of the Public Records Law. G. L. c. 4, § 7(26)(c);(d);(e);(g);(h). Unsatisfied with the EOHED's response, Attorney Graham petitioned this Office and this appeal, SPRl 7/ 1531, 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, § 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 to,vn 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, § 1 O(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. · 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

Katherine Graham, Esq. SPRI 7/1531 Page 2 November 8, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The EOHED's October 3rd response In its October 3rd response, the EOHED indicated that the records responsive to the request are exempt from production pursuant to the following exemptions under the Public Records Law. Exemption (c) The EOHED indicated its intent to withhold portions of the responsive record under Exemption ( c) of the Public Records law. Exemption ( c) of the Public Records Law permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4; § 7(26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring separate analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause, which applies to requests for records that implicate privacy interests, is relevant to this appeal. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, detem1inations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment ofAnimals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second c:lause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

Katherine Graham, Esq. SPR17/1531 Page 3 November 8, 2017 App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knmving whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. · Under its Exemption ( c) claim, the EO HED indicated that, " [w ]here information such as home addresses or personal telephone numbers or email addresses appear in responsive documents, EOHED anticipates redacting such information before releasing the document." Exemption (d ) The EOHED indicated it withheld the responsive record under 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 V\ri.thin 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, 88 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). Under its Exemption (d) claim, the EOHED indicated that, "[t]he records that you have requested, specifically including draft bids, internal emails, messages, memos, etc. all represent materials prepared and under active consideration by EOHED and other agencies relating to the Baker/Polito Administration's policy with respect to the RFP. These documents are therefore exempt from production under the Public Records Law."

Katherine Graham., Esq. SPR17/1531 Page 4 November 8, 2017 Exemption (e) The EOHED indicated its intent to withhold the responsive record under Exemption (e) of the Public Records Law. Exemption (e ) applies to: notebooks.and other materials prepared by an employee of the commonwealth which are personal to him. and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that·can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist hirn/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e ) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Under its Exemption ( e) claim, the EOHED claimed "Exemption ( e) applies to 'notebooks and other materials prepared by an employee of the Commonwealth that are personal to him. ... ' Some EOHED employees do maintain notebooks which may contain notes related to the RFP ... " Exemption (g) The EOHED indicated that it was foreseeable that Exemption (g) would apply to the records in the future. Exemption (g) applies to: trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this sub-clause shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit

Katherine Graham, Esq. SPR17/1531 Page 5 November 8, 2017 G. L. C. 4, § 7 (26)(g). For this exemption to apply to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, ( 4) Upon an assurance of confidentiality, (5) Information provided by law, and ( 6) Information not submitted as a condition of receiving a governmental contract or benefit. Under its Exemption (g) claim, the EOHED indicated that that, "[w]e would also point out that Exemption (g) applies to certain materials 'voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality.' ... Although we are not currently aware of any materials that would be subject to this exemption, it is foreseeable that this could change in the future." Exemption (h) Also, the EOHED indicated its intent to withhold the responsive record under Exemption (h). Exemption (h) applies to: proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection 'Nith an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person G. L. C. 4, § 7 (26)(h). Under its Exemption (h) claim, the EOHED indicated that "Exemption (h) which deals with 'proposals and bids to enter into any contract or agreement' may also apply to responsive materials maintained by EOHED. The Supervisor of Records has observed that this exemption serves to protect the integrity of the bidding process used by the government to procure goods and services. Although the statutory language seems to anticipate that a government entity will be the issuer of the RFP, rather than responding to it, there is still a public interest in protecting the integrity of the process." Conclusion Subsequent to the intervention by a staff member of the Public Records Division, I

Katherine Graham, Esq. SPR17/1531 Page 6 November 8, 2017 learned that a representative from the EOHED intends on providing responsive records to Attorney Graham. The EOHED is advised that for any portion of the record it withholds it must state with specificity how an exemption to the Public Records Law applies to withhold or redact the record. See G. L. c. 66, § lO(b)(iv). Accordingly, I will consider this administrative appeal closed with the proviso that the EOHED provides said response 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. Attorney Graham may appeal the substantive nature of the response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Katherine Graham, Esq.