Nimra H. Azmi v. Boston, City of - Police Department (SPR 20180549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 8, 2018 SPR18/549 Martha J. DeMaio Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Nimra H. Azmi of the Muslim Advocates on behalf of the Muslim Justice League appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on January 8, 2018, Fatema Ahmad of the Muslim Justice League requested "[a]ll documents related to a Department of Homeland Security 'Countering Violent Extremism' grant of $463,185 obtained by the Police Foundation for the 'Youth and Police Initiative Plus' program with the Boston Police Department, including the original grant application." The Department responded to her request on February 21, 2018. In its response, the Department indicates it does not possess a copy of the grant application. Additionally, the Department provided responsive records, specifically, email correspondence. Personal email addresses and cell phone numbers were redacted pursuant to Exemption ( c) of the Public Records Law. The Department additionally redacted the content of surveys pursuant to Exemption (d) of the Public Records Law. In her petition for appeal, Ms. Azmi specifically takes issue with the Department's Exemption ( d) claim. This determination is limited accordingly. 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 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

Martha J. DeMaio SPR18/549 Page 2 May 8, 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. Exemption (d) In its response, the Department indicates it "withheld portions of the responsive records that relate to an ongoing deliberative process, pursuant to exemption (d) of the public records law. G. L. c. 4 § 7 (26) (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 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). The Department indicates that "[t]he process for developing surveys for use during the program is ongoing. The content of the surveys is under constant revision and review and the surveys have not yet been finalized. Disclosure of the surveys prior to the conclusion of the drafting and review process would harm the deliberative process. Department staff and third party partners in the program are the only persons reviewing the documents withheld under exemption ( d). Once the surveys are final they will be available for public viewing. At that time you are encouraged to request the surveys again should you wish to obtain copies. No other records were withheld pursuant to exemption (d)."

Martha J. DeMaio SPR18/549 Page 3 May 8, 2018 The Department is advised that Exemption ( d) applies only to recommendations on legal and policy matters. Based on the Department's response, it is unclear how the redacted portions constitute a recommendation on legal and policy matters or how disclosure would taint the deliberative process. Further, the Department has not established how the redacted survey information constitutes "interagency or intra-agency memoranda or letters" as required by Exemption ( d). It should also be reiterated that any information that is factual in nature is always subject to disclosure as Exemption ( d) does not apply to such information. Therefore, I find that the Department has not established how the responsive record is "inter-agency or intra-agency memoranda or letters relating to policy positions being developed" by the Department. Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Although the Department provided some responsive records, Attorney Nimra asserts the Department "failed to produce the survey instruments themselves." Based on the Division's response, together with Attorney Nimra' s petition, it is unclear whether the Department possesses any additional responsive records. The Department must clarify this matter. I understand a member of the Public Records Division staff contacted your office about this matter, but was unable to reach you prior to the issuance of this determination. Order Accordingly, the Department is hereby ordered to provide Attorney Nimra with a response to the request, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Azmi H. Nimra