Glen Ayers v. Massachusetts Department of Environmental Protection (SPR 20171644)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2017 SPR17/1644 Julianne E. Ture Department of Environmental Protection Bureau of Water Resources Charlestown Naval Yard 100 First Avenue, Building 39 Boston, MA 02129 Dear Ms. Ture: I have received the petition of Glen Ayers appealing the response of the Department of Environmental Protection Bureau of Water Resources (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ayers requested a copy of, or an online website link to: 1. The Department's comments to the ENRA Committee concerning "An Act Ensuring Safe Drinking Water at schools and early childhood programs (Senate Bill No. 456); 2. The Department's comments, if any, regarding House Bill No. 2130, "An Act Relative to Public Water Supply Records;" and 3. The Department's comments, if any, regarding House Bill No. 2422, "An Act Relative to Local Oversite of Non-Municipal Public Water Supply Systems." 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 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 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

Julianne E. Ture SPRl 7/1644 Page2 December 8, 2017 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, § 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 Department's November 9th response The Department's November 9th response states that it has not prepared any comments regarding House Bill No. 2422; therefore, the Department has no records responsive to Mr. Ayers' request. Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). The November 9th response further states that the Department has withheld seven emails and three documents between Department staff that contain comments regarding Senate Bill No. 456, "An Act Ensuring Safe Drinking Water at Schools and Early Childhood Programs." The Department has also withheld a document and two emails that contain comments from Department staff regarding House Bill No. 2130, "An Act Relative to Public Water Supply Records." The Department claims that the comments are still in process, and may be withheld under the deliberative process exemption, G. L. c. 4, § 7 (26)(d). Unsatisfied with the Department's response, Mr. Ayers petitioned this office and this appeal was opened as a result. Exemption (d ) The Department informed Mr. Ayers that it is withholding the Senate and House bill comments, in their entirety, pursuant to 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 sub-clause 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. Babets v. Sec'v 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

Julianne E. Ture SPRl 7/1644 Page 3 December 8, 2017 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 Department's response states that the comments regarding both the Senate and House bills are still in process; therefore, they are being withheld under the deliberative process exemption. The Department has not met its burden of specificity in claiming Exemption ( d) of the Public Records Law. The Department's November 9th response is simply a declaration of intention to utilize Exemption ( d) to withhold records rather than explaining its applicability. The Department's response lacks any explanation of what deliberative process it is currently involved in, and how disclosure of any portion of the documents would taint the deliberative process. The Department is advised that the Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 1O (b )(iv)( emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The Department must produce any non-exempt, segregable portion of a public record. G. L. c. 66, § 10(a ). It is my understanding that an attorney in the Public Records Division contacted you about this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Ayers 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. Mr. Ayers may appeal the substantive nature of the supplemental response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Glen A. Ayers