Zach Ben-Amots v. City of Boston - Property Management Department (SPR 20171548)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 8, 2017 SPR17/1548 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: ' I have received the petition of Zach Ben-Amots appealing the. response of the City of Boston (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on September 28, 2017, Mr. Ben-Amots requested"[c Jopies of emails, texts and other communication to and from [a n identified individual and his/her staff] from January 1, 2016, to present regarding the bid for building Amazon's new headquarters in Boston, MA." The City provided a response dated October 12, 2017, in which it denied access to the records under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the City's response, Mr. Ben-Amots petitioned this office and this appeal, SPRl 7 /1548, was opened as a result. Procedure for appeals A review of the petition Mr. Ben-Amots filed with the Supervisor of Records (Supervisor) reveals that Mr. Ben-Amots did not provide a copy of the petition to the City's records access officer. Mr. Ben-Amots is reminded that "[i]n petitioning the Supervisor, the requester shall provide a copy of such petition to the records access officer associated with such petition." 950 C.M.R. 32.08(1)(h). A copy of the file v,ras provided to the City. The Public Records Law The Public Records Law strongiy 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 offi.cer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: '(617) 727-5914 sec.state.ma.us/pre• pre@sec.state.rna.us

Shawn A. Williams, Esq. SPRl 7/1548 Page2 November 8, 2017 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, § 1O (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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's October 12th response In its October lib response, the City indicated that the "[t]he deadline for submitting a bid to Amazon is October 19, 2017. As such, any bid or submission by the City is incomplete at this time. Accordingly, your request is denied, as all responsive records are exempt from disclosure pursuant to Exemption (d) of the Public Records Law .... " The City explained that "[t]he withheld responsive records do not contain any 'reasonably completed factual' studies or reports. The withheld responsive records contain no portions that could be considered non-exempt or segregable. All withheld ·responsive records contain ·information that is part of an ongoing deliberative process by the City, namely whether the City intends to proceed with submission of a bid related to the location of a second headquarters for Amazon. All conespondence and draft documents related specifically to a proposal that has not yet been submitted to Amazon for consideration. Deliberation concerning drafting, reviewing and considering the content of any possible bid is ongoing and has not yet concluded, as the deadline for submission has not yet passed." Further, the City indicated that "[a]ny disclosure of the responsive records prior to the submission of a bid would be harmful to the deliberative process in that it would permit other prospective bidders to see the content of discussions and drafts of proposals related to the bid, providing those bidders an unfair advantage. Once the submission period has expired you may feel free to make a new request for these records." Exemption (d ) The City indicated it withheld the responsive records 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

Shawn A. Williams, Esq. SPRl 7/1548 Page 3 November 8, 2017 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, 88 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). As stated above, Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Due to the fact that access to responsive records associated with this public records request was denied because there was an ongoing deliberative process, this exemption may no longer apply to withhold the records after conclusion of the bidding process. In a telephone conversation, you indicated that the City will be providing a supplemental response in light of the fact that the deadline for the submission of bids to Amazon has passed and Exemption ( d) may no longer apply to withhold the responsive records. Conclusion Accordingly, wherea:s the City has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the City provides said response to Mr. Ben-Amots 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. Mr. Ben-Amots 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: Zach Ben-Amots