Erin M. O'Toole, Esq. v. Office of the Attorney General (SPR 20180432)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April17, 2018 SPRlS/432 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 021 08 Dear Attorney Tarrow: I have received the petition of Erin O'Toole, Esq. of BCK Law, P. C. appealing the response of Office ofthe Attorney General (AGO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney O'Toole requested a copy of: 1. All communications between the AGO and any one or more of the five identified persons; 2. All records created by the AGO concerning any one or more of the five identified persons; 3. All records created by the AGO or intra-agency communications concerning the Cape Light Compact or Cape Light Compact JPE (the Compact): 4. All records submitted or prepared by any one or more of the five identified persons; and 5. All records or intra-agency communications concerning complaints (whether formal or informal) against or related to the Compact. Tlte 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). 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) (written response must "identify 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 A.G. Tarrow, Esq. SPR18/432 Page 2 April 17, 2018 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 ... "); 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). The AGO's February 26th response The basis of Attorney O'Toole's appeal is the AGO's intent to withhold four records that may be responsive to her Request Number 2 for all records created by the AGO concerning any one or more of the five persons she identified in her request letter. Your February 26th response cites Exemption (d) of the Public Records Law to withhold, in their entirety, four records responsive to Attorney O'Toole's request. Exemption (d) Exemption (d) applies to: 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 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. Babets v. Sec'y of the Exec. Office of Human Services, 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). In its February 26th response, the AGO asserts that the four records are being withheld in their entirety under Exemption (d) as the records are intra-agency memoranda, briefing materials and drafts that possess a deliberative character, reflecting thought processes and analysis of ongoing development of policy positions. The AGO contends that disclosure of these records would impact current and future deliberations by inhibiting "candid thinking" that is necessary in developing reasoned courses of action. In her petition, Attorney O'Toole questions how the records concern ongoing policy positions considering the request relates to individuals, not a regulatory proceeding or active litigation. Furthermore, Attorney O'Toole contends that where the AGO has not provided

Lorraine A.G. Tarrow, Esq. SPR18/432 Page 3 Aprill7, 2018 enough details regarding the records, such as dates, authors and subject matter of the records. As a result, she believes that it is difficult to ascertain whether the AGO has properly applied Exemption (d) to withhold the four records. The AGO's February response does not provide sufficient details about the particular records mentioned in its response, and how those particular records involve any ongoing policy development. Neither does the AGO explain whether the records contain any factual information or any content within the records that could be segregated, rather than withholding the records in their entirety under Exemption (d). I find that the AGO has not met its burden of specificity in claiming Exemption (d) of the Public Records Law to withhold the records in their entirety. Burden of specificity; duty to segregate records Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1 O(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The AGO did not meet its burden of demonstrating how the records are exempt, in their entirety, See Reinstein v. Police Comm'r of Boston, 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, § 1 0( a). In an April 12th telephone call, the AGO indicated that a supplemental response will be provided to Attorney O'Toole. Conclusion Accordingly, whereas the AGO has indicated that it will provide a supplemental response, this appeal is closed. The response must be provided in a manner consistent with this determination, 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: Erin O'Toole, Esq.