Philip Marcelo v. Boston, City of - Public Records (SPR 20180243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 9, 2018 SPR18/243 Shawn Williams, Esq. Director of Public 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/BPS) 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 "[d]id 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?" Previous appeal This request was the subject of a previous appeal. See SPRl 7/1640 Determination of the Supervisor of Records (December 4, 2017). I closed SPRl 7/ 1640 with the proviso that the City provide a supplemental response, in a manner consistent with the order, the Public Records Law, and its Regulations. FoHuwin-gthe---Becember4J:~eterrrrinatiun-;-the Citypruvided·aTespurrse---daten----fanmrrr·----· 12, 2018, in which it continues to deny access to responsive records pursuant to Exemptions (a) and (d) of the Public Records Law. G. L. c. 4 § 7(26)(a), (d). Unsatisfied with the City's response, Mr. Marcelo petitioned this office and this appeal, SPR18/243, 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 Cqmmonwealfh, 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

Shawn Williams, Esq. SPR18/243 Page2 March 9, 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, § 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, § 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 City's Janua,y 12th response In its January 12, 2018 response, the City indicated that "BPS maintains the records requested are entirely exempt at this time pursuant to [E]xemption ( d) of the Public Records Law." The City indicated that the records also contain student information exempt from disclosure by statute, G. L. c. 71, § 34D. The City explained that the "recommendations in question presently are those of the Office of the United States Attorney (U.S. Attorney) [who] would offer its recommendations and conclusions only at the end of the three year period." The City reiterated that "[t]he requirements of the U.S. Attorney to BPS regarding submissions made by BPS are subject to change at any time during the three year period ... " With respect to redacting responsive records, the City claimed that "as the entire record is part of an ongoing deliberative process between the BPS and the U.S. Attorney, there is no 'non exempt, segregable portion' to provide." The City reiterated its position "that responsive records are entirely exempt from disclosure until such time as the U.S. Attorney completes its deliberations." Exemption (a) The City claimed it withheld responsive records pursuant to Exemption (a) of the Public Records Law. Exemption (a), knovvn as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L c. 4, §1 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Publi_c Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Shawn Williams, Esq. SPR18/243 Page 3 March 9, 2018 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." · The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The City has cited G. L. c. 71, § 34D as applicable to withhold responsive records pursuant to Exemption (a). The statute provides in relevant part: Student Records - Board of Education to Adopt Regulations. The board of education shall adopt regulations relative to the maintenance, retention, duplication, storage and periodic destruction of student records by the public elementary and secondary schools of the commonwealth. Such rules and regulations shall provide that a parent or guardian of any pupil shall be allowed to inspect academic, scholastic, or 1ny other records concerning such pupil which are kept or are required to be kept. G. L. C. 71, § 34D. Exemption (d ) The City 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

Shawn Williams, Esq. SPR18/243 Page4 March 9, 2018 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). In camera inspection In order to analyze the legal basis of the City's position, it is the finding of this office that an in camera review of an unredacted copy of the responsive records would facilitate a determination as to the applicability of any exemption claims made by the City. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 3 71 Mass. at 66 ( explaining that " [o ]n doubtful questions an in camera inspection may be appropriate"). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in · cum~ruiire-promptly retumia=to~1ccustournn. To opera:teiirany o1her fasrnurrwm:ila senousTy · ~ ~·· impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the City is hereby ordered to provide this office with an umedacted copy of the responsive records without delay.

Shawn Williams, Esq. SPR18/243 Page 5 March 9, 2018 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Phillip Marcelo ---- --~- ------------- --------~ ~~ ~ - ~ -- --- ~ -- - -~----