Irwin Nesoff v. Office of the Attorney General (SPR 20180184)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 27,2018 SPRlS/184 Lorraine Tarrow, Esq. Assistant Attorney General Office of the Attorney General One Ashburton Place Boston, MA 021 08 Dear Attorney Tarrow: I have received the petition of Irwin Nesoff appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Nesoffrequested records "pertaining to the merger of Wheelock College and Boston University[,] specifically ... a copy of the MOU signed by the two parties and any other filings that pertain to this merger." The AGO provided a response on February 7, 2018, denying access to responsive records pursuant to Exemption (d) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(d), (f). Unsatisfied with the AGO's response, Mr. Nesoff petitioned this office and this appeal, SPR18/184, was opened as a result. Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Nesoffs purpose in making the request has no bearing on the public status of any existing responsive records. 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, § 10A(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

Lorraine Tarrow, Esq. SPR18/184 Page 2 February 27, 2018 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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The AGO's February fh response In its February 7, 2018 response, the AGO indicated that it withheld all responsive records because, "they relate to the Non-Profit Organizations/Public Charities Division's ('NPCD') ongoing review of the proposed merger, including review of the Memorandum of Understanding ('MOU')." The AGO indicated that the following exemptions are applicable to withhold responsive records. Exemption (d) The AGO claimed 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 subject to disclosure). Under its Exemption (d) claim, the AGO indicated that these records are exempt from disclosure because they are "intra-agency memoranda and communications that reflect internal

Lorraine Tarrow, Esq. SPR18/184 Page 3 February 27,2018 deliberations and legal thought processes, or otherwise demonstrate the AGO's approach to similar cases, the disclosure of which will undermine the AGO's legal and investigative strategy concerning ongoing deliberative processes." Exemption (/) The AGO indicated that it withheld responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the AGO indicated that the records are exempt under Exemption (f) because they are "investigative materials related to the proposed merger of Wheelock College and Boston University, including the MOU, that are necessarily compiled out of the public view, the disclosure of which would so prejudice the possibility of effective law enforcement by divulging the AGO's investigative strategy and techniques, and revealing the nature and sources of our information, that such disclosure would not be in the public interest." Burden ofs pecificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10 ( d)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... ");see also Globe Newspaper

Lorraine Tarrow, Esq. SPR18/184 Page4 February 27,2018 Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The AGO did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the AGO withheld responsive records without identifying the records. Therefore, the AGO must identify the type of record(s) it has in its possession that it withheld. Also, the AGO has not demonstrated that the withheld information is exempt under Exemption (d) of the Public Records Law. Although the AGO claims that these records are "intra-agency memoranda and communications that reflect internal deliberations and legal thought processes ... ,"I find that the AGO has not established how the records at issue are "inter-agency or intra-agency memoranda or letters" as required by Exemption (d). Specifically, the AGO has not established that the responsive records were sent between governmental entities or consultants. See DOl v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not "intra agency" under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). Additionally, although the AGO claims that disclosure of the records "will undermine the AGO's legal and investigative strategy concerning ongoing deliberative processes," it is unclear how disclosure of any segregable portion of the record would taint or undermine the AGO's deliberative processes. Likewise, I find the AGO has not met its burden of providing specific detail in its response to withhold responsive records under Exemption (f). While the AGO claims the records relating to the proposed merger between Wheelock College and Boston University are "investigative materials ... that are necessarily compiled out of the public view," it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, despite the AGO's claim that disclosure would prejudice the possibility of effective law enforcement because it would divulge "the AGO's investigative strategy and techniques, and [reveal] the nature and sources of our information ... "it's unclear how the records cannot be redacted to prevent the disclosure of the AGO's strategies, techniques, and the nature and sources of its information. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). I understand a Public Records Division staff attorney contacted your office about this appeal and was informed that the AGO would provide a supplemental response to Mr. Nesoff.

Lorraine Tarrow, Esq. SPR181184 Page 5 February 27, 2018 Conclusion Accordingly, whereas the AGO has indicated that it will provide a supplemental response, I will now consider this administrative appeal closed with the proviso that the AGO provide 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Irwin Nesoff