Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20180302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 23, 2018 SPR18/302 Peter Wilson, Esq. Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Wilson: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (Division/DCAMM) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on November 2, 2017, Mr. Herman requested to set up time to view any and all documents related to the Division's efforts to get yacht and boat clubs to sign leases pursuant to Chapter 65 of the Acts of 2010. Previous appeals This request was the subject of previous appeals. See SPRI 7/1559 Determination of the Supervisor of Records (November 16, 2017); SPRl 7/1618 Determination of the Supervisor of Records (November 22, 2017); SPRI 7/1667 Determination of the Supervisor of Records (December 11, 2017); SPRl 7/1702 Determination of the Supervisor of Records (December 21, 2017); SPR18/054 Determination of the Supervisor of Records (January 26, 2018); SPR18/187 Determination of the Supervisor of Records (February 21, 2018). I closed SPR18/187 by stating that the Division must produce a response to the request without delay because it had not shown good cause to be granted a single extension of five business days to respond to the order in SPR18/054. Following the February 21st determination, the Division provided a response on March 6, 2018, denying access to responsive records pursuant to Exemption ( d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the Division's response, Mr. Herman petitioned this office and this appeal, SPR18/302, 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, § IOA(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

Peter Wilson, Esq. SPR18/302 Page2 March 23, 2018 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Division's March 6th response In its March 6, 2018 response, the Division indicated that because it provided all responsive records to Mr. Herman's public records request on November 2, 2017, it is considering this appeal to be a new public records request. In Mr. Herman's previous appeal, he noted five categories of responsive records that had not been provided by the Division. In its recent response, the Division claimed that it produced the April 30, 2012; December 11, 2013; and December 20, 2013 letters in its previous responses as "[a] diligent and reasonable search of DCAMM' s records did not reveal any other responsive documents in DCAMM' s possession[,] custody, or control." The Division indicated that it possesses "communications from the clubs to the Division and other relevant internal communications" and the "July 23, 2014 letter to an identified individual referenced in a letter dated August 18, 2014." However, it indicated that it withheld these records pursuant to Exemption ( d) of the Public Records Law because it "is in the process of negotiating with numerous boat clubs for long term leases." The Division indicated that "DCAMM is developing and seeking to maintain consistent policy positions with regard to the provisions of these various leases, to ensure that similarly-situated boat houses are treated similarly." The Division indicated that "[w]hile DCAMM, with DCR, developed a form of lease to be used with boats clubs, different boat clubs have different issues that need to be addressed in the leases for those clubs. In addition, each boat club is required to provide in-kind consideration and DCAMM, with DCR, seeks to ensure that the in-kind consideration each club provides will be of benefit to the public." The Division indicated that "throughout each negotiation, DCAMM is trying to ensure that the state's leasing policy with regard to boat houses is fair and workable for all affected boat houses and also benefits the Commonwealth and the public. These efforts require policy deliberations about such issues as rent, term, duties to maintain, termination provisions, particular issues relating to particular clubs, and appropriate in-kind consideration."

Peter Wilson, Esq. SPR18/302 Page 3 March 23, 2018 The Division indicated that "[t]his exemption allows for internal government memos or letters which address development of policy to be maintained as confidential until the policy is adopted. The purpose of this exemption is to allow government officials to consider and form policy by engaging in a free and frank exchange of options and ideas. That exchange is ongoing with regard to lease provisions for boat houses, so these documents are exempt under subsection (d)." Exemption (d) The Division 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 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 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). Although the Division claims the communications are from clubs that are in the process of negotiating boat house leases, I find the Division has not established how the records at issue are "inter-agency or intra-agency memoranda or letters" as required by Exemption ( d). In particular, the Division has not demonstrated that the responsive records, including communications between the Clubs and the Division, were only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 4 (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).

Peter Wilson, Esq. SPR18/302 Page4 March 23, 2018 Further, it is unclear how responsive records m.ay be withheld in their entirety. The Division must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § IO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It should also be reiterated that any information contained in these records that is factual in nature may be subject to disclosure as Exemption ( d) does not apply to such information. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Division is ordered to provide Mr. Herman with responsive records, 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. The Division may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~a~ Supervisor of Records cc: Colman Herman