Philip Marcelo v. Boston, City of - Public Records (SPR 20171640)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 4, 2017 SPR17/1640 Shawn Williams, Esq. Director of Records City of Boston - Public Records 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Philip Marcelo of The Associated Press appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 9, 2017, Mr. Marcelo inquired "Did Boston Latin or the School District ever submit the 1st of these annual reports to the US Atty's office, as outlined in this letter to the district last fall. . . . If so, can I get a copy?" The City acknowledged receipt of the request on August 18, 2017, and provided a supplemental response on October 12, 2017, in which it denied access to the responsive record pursuant to Exemption ( d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the City's response, Mr. Marcelo petitioned this office and this appeal, SPRl 7 /1640, 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, § IOA(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, § 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. 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

Shawn Williams, Esq. SPRl 7/1640 Page 2 December 4, 2017 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 lih response, the City indicated that upon reviewing Mr. Marcelo's request with the Office of the Legal Advisor for Boston Public Schools, the responsive records, although they exist would not be disclosed at this time. The City indicated "the record responsive to your request is withheld under Exemption ( d) at this time as the document is related to an ongoing settlement matter between BPS and the federal government, namely the office of the U.S. Attorney, and is part of an ongoing deliberative process related to that settlement. As part of the settlement, BPS is required to submit annual reports to the U.S. Attorney for three years. The BPS has recently submitted the first of these three reports to the U.S. Attorney. At the end of the three year period the U.S. Attorney may continue the investigation or conclude the investigation." The City indicated that "[a]ny disclosure of the responsive record prior to the final settlement date with the U.S. Attorney would be harmful to the deliberative process, as at any time during the three year period the U.S. Attorney may order the BPS to revise, update or otherwise amend any of the School's district reporting requirements. While a settlement agreement has been entered into, the agreement and closure of the underlying legal matter do not actually become final until such time as the U.S. Attorney is satisfied, and that time will not expire until at least the end of the three year period .... It is for these reasons that the record you seek will be withheld entirely at this time, pursuant to Exemption (d)." Exemption (d ) The City claimed it withheld the responsive records pursuant to Exemption (d) of the Public Records Law. 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

Shawn Williams, Esq. SPRl 7/1640 Page 3 December 4, 2017 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 subject to disclosure). The City indicated that the responsive record "is part of an ongoing deliberative process related to [a] settlement" matter between Boston Public Schools and the Office of the U.S. Attorney (Office). However, based on the City's response, it is unclear the nature of the deliberation that is ongoing or how releasing the report would taint the deliberative process. The City is advised that Exemption (d) "is limited to recommendations on legal and policy matters." Based on its response, it is unclear the policy positions that are being developed by the City. It is also unclear how the first annual report previously provided to the Office is not a "reasonably completed factual [study] or [report]" to which Exemption (d) does not apply. Further, it is unclear how responsive records may be withheld in their entirety. The City must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, whereas 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 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. Marcelo may appeal the substantive nature of the City's response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~ u r r ~ Supervisor of Records cc: Philip Marcelo