Stephen J. Morgan v. Ashland, Town of - Public Schools (SPR 20171650)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 7, 2017 SPR17/1650 Katherine Feodoroff Town of Ashland 101 Main Street Ashland, MA O1 721 Dear Ms. Feodoroff: I have received the petition of Stephen Morgan appealing the response of the Town of Ashland (Town) to a request for public records. G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2). Specifically, on August 31, 2017, Mr. Morgan requested notices, minutes, and documents from a meeting on August 8, 2017 regarding the Ashland Strategic Advisory Group (Group). Previous appeal The requested record was the subject of a previous appeal. See SPRl 7 /1452 Determination of the Supervisor of Records (October 23, 2017). This office closed SPR17/1452 with the proviso that the Town provide Mr. Morgan with a supplemental response in a manner consistent with the order, the Public Records Law, and its Regulations. The Town provided a response dated November 27, 2017 in which it denied access to responsive records pursuant to Exemptions (d) and (e) of the Public Records Law. G. L. c. 4, § 7(26)(d), (e). Unsatisfied with the Town's response, Mr. Morgan petitioned this office and this appeal, SPRl 7 /1650, 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 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.ma.us

Katherine Feodoroff SPRl 7/1650 Page 2 December 7, 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 Town's November 2th response In its November 27th response, the Town indicated the following exemptions are applicable to withhold responsive records. Exemption (d) The Town indicated that it withheld 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 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). Under its Exemption (d) claim, the Town indicated "[a]s your request relates to documents used during the meetings, these documents, drafts of the Strategic Plan, fall within the deliberative process exemption. The draft plans reflect policy positions being developed by the Group, which has not yet completed its charge anq the disclosure of which could taint the deliberative process."

Katherine Feodoroff SPRl 7/1650 Page 3 December 7, 2017 Exemption (e) The Town indicated that it withheld responsive records pursuant to 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 notes created to refresh an employee's memory of a work related activity or notes created by an employee to assist in preparing reports for other employees 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 Department 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 Town indicated that "[t]o the extent that members of the Group created notes during the meetings, these notes are being withheld pursuant to Exemption (e), as they were personal to the individual and not shared with the group." Burden of specificity; segregable portions The Town's November 27, 2017 response did not contain the level of specificity required in a denial of access to public records. With respect to its Exemption (d ) claim, the Town claims that disclosure "could taint the deliberative process." However, it is unclear how releasing any portion of the responsive record would taint the deliberative process. The Town is advised that Exemption ( d) "is limited to recommendations on legal and policy matters." Based on its response, I find the Town has not demonstrated how every portion of the responsive record, including meeting notices, relate to legal policy matters found in an ongoing deliberative process.

Katherine Feodoroff SPRl 7/1650 Page 4 December 7, 201 7 With respect to its Exemption ( e) claim, I find the Town has provided no specificity concerning why it claims notes created by members of the Group are "personal to a particular employee" and not required to be part of the files of the governmental unit. The Town merely states that notes taken by members of the Group "were personal to the individual and not shared with the Group," but it has not demonstrated how the notes constitute personal reflections prepared by an employee on work-related activities or were created to assist the employee in preparing reports for other employees of the governmental entity. Therefore, the Town has not met its burden of withholding these records under Exemption ( e) of the Public Records Law. Further, it is unclear how records may be withheld in their entirety. Under the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Thus, a custodian of records has the obligation to segregate exempt material from a record, and provide the balance of the record whenever possible. Consequently, I find that the Town has not satisfied its statutory and regulatory burden under the Public Records Law and Access Regulations in responding to Mr. Morgan's public records request. Open Meeting Law In its response, the Town also indicated its position that "the Group is not a public body within the meaning of the Open Meeting Law." However, the Town notes that the Group's status as a public body "is the subject of an Open Meeting Law complaint, for which a determination has not been made." This response from the Town, in conjunction with portions of Mr. Morgan's request for "notices" and "minutes" from the August 8, 2017 meeting, raise issues that invoke the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. Therefore, I find it is necessary to obtain an opinion from the AGO's Division of Open Government as to whether the Town's position is proper under the Open Meeting Law. I understand a Public Records Division staff attorney contacted the Town Counsel about this appeal and you indicated you will provide a supplemental response. Order Accordingly, whereas the Town has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Town 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.

Katherine Feodoroff SPRI 7/1650 Page 5 December 7, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Stephen Morgan