Barry S. Cosgrove v. Wareham, Town of - Fire District (SPR 20171710)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 22, 2017 SPR17/1710 Wendy A. Lemieux Records Access Officer Town of Wareham Fire District Water Department 2550 Cranberry Highway Wareham, MA 02571 Dear Ms. Lemieux: I have received the petition of Barry C. Cosgrove appealing the response of the Town of Wareham Fire District Water Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Cosgrove requested fifteen (15) categories of records regarding the synthetic organic compound detection, including the Maple Park Well Site and the 2016 Kleinfelder Tracer Study. On November 29, 2017, the Department provided records responsive to Requests Numbered 1-3, 4, 7, 9, 11-13 and 15; an incomplete response to Request Number 14; and has withheld, in their entirety, records responsive to Requests Numbered 5, 6, 8 and 10. As a result, Mr. Cosgrove petitioned this office, and this appeal was opened. Request No. 14 - Communications With regard to Mr. Cosgrove's Request Number 14 for "communications to and from the Consultants regarding the topic of the Tracer testing," the Department provided some of the email communications; however, after a review of the records, Mr. Cosgrove believes that the Department is still in possession of further email communications. I find that the Department must conduct a further search for the communications responsive to Request Number 14, and provide Mr. Cosgrove with a supplemental response regarding this request. 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 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

Wendy A. Lemieux SPRl 7/1710 Page2 December 22, 2017 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department's November 29th response In its November 29th response, the Department indicated that Mr. Cosgrove's Request Number 8 for all communications regarding the Tracer testing have been withheld because certain of the communications are owned by Kleinfelder, not the Department. A review of the November 29th response reveals that the Department did not specifically claim any exemption in the Public Records Law to withhold the communications. Whereas, Kleinfelder and the Department have a "master services agreement," it is unclear whether there is an agency relationship, and whether the Department would be entitled to obtain the responsive communications from Kleinfelder. I find that the Department has not met its burden under the Public Records Law of specificity in claiming an exemption to withhold the communications and of demonstrating that the Department does not have a duty to obtain the requested records from Kleinfelder. The Department's response also indicates that it is withholding Mr. Cosgrove's Requests Numbered 5, 6, 8 and 10 under Exemption (d) of the Public Records Law, as "work product." The Department's response does not provide any specificity concerning Exemption (d ) and the "work product doctrine," and how this exemption and doctrine allow the Department to withhold the records, in their entirety. Exemption (d ) 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 sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or maybe 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

Wendy A. Lemieux SPRl 7/1710 Page 3 December 22, 2017 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). The Department claims that the Tracer study, second-opinions and/or peer reviews are not final decisions, and that the study is a draft report and not reasonably completed; therefore, the Department is withholding these records under Exemption (d ), as deliberative process. In addition, the Department belie0ves that the records are "work product." In DaRosa, the SJC concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. The Department has not claimed that the responsive drafts and second-opinions were prepared in anticipation of litigation or trial; therefore, it is unclear how the "work product doctrine" applies to the responsive records that the Department has withheld. In addition, the SJC stated "[w]e recognize that [E]xemption (d) protects documents from disclosure 'only while policy is 'being developed,' that is, while the deliberative process is ongoing and incomplete." DaRosa, 471 Mass. at 459 n. 16. (citing Babets, 403 Mass. at 237 n. 8). Furthermore, the Babets Court stated "[t]he Legislature has thus chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available." Babets, 403 Mass. at 237 n. 8. Mr. Cosgrove has indicated in his December ?1h petition that the documents in his Requests Numbered 6, 8 and 10 relate directly to communications regarding two separate second opinions of the Department's Tracer study. He explained that the opinions are completed, were paid for by the citizens, were not opinions addressed to or from legal counsel, and were disclosed in whole and in part to him by the Department in its response to a separate request. Further, he informed an attorney in the Public Records Division that the results of these second opinions were publically referenced by the Department at various public meeting. Therefore, it is Mr. Cosgrove's belief that neither a valid work product claim exists, and nor does Exemption (d) apply to withhold the records. I find that the Department did not meet its burden of specificity in claiming Exemption ( d) coupled with the work product doctrine to withhold records because the Department neither provided the language of the exemption, nor the reasons that the claimed exemption applies to withhold the records in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The

Wendy A. Lemieux SPRl 7/1710 Page4 December 22, 2017 Department also has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § lO(a). It is my understanding that a Public Records Division attorney contacted you concerning this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Cosgrove with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Cosgrove may appeal the substantive nature of the supplemental response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Barry S. Cosgrove (via email)