Stephen J. Morgan v. Ashland, Town of - Town Manager (SPR 20180743)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records June 6,2018 SPRl81743 Katherine Feodoroff, Esq. Mead, Talerman & Costa, LLC 730 Main Street, Suite 1F Millis, MA 02054 Dear Attorney Feodoroff: I have received the petition of Stephen Morgan appealing the response of the Town of Ashland (Town) to a request for public records. G. L. c. 66, 5 10(A); see also 950 C.M.R. 32.08(1). Specifically, on August 3 1,201 7, Mr. Morgan requested notices, minutes, and documents from a meeting on August 8,2017 regarding the Ashland Strategic Advisory Group. Previous appeals The requested records were the subject of previous appeals. See SPRl711452 Determination of the Supewisor of Records (October 23,2017 ); SPR1711650 Determination of the Supervisor of Records (December 7,2017 ); SPR181491 Determination of the Supervisor of Records (April 27,201 8). I closed SPR1711650 with the proviso that the Town provide a response in a manner consistent with this order, the Public Records Law, and its Regulations. The Town responded on December 13,201 7 in which it denied access to responsive records pursuant to Exemptions (d) and (e) of the Public Records Law. G. L. c. 4, 5 7(26)(d), (e). In my April 27th determination I found it was necessary to first obtain an opinion from the Division of Open Government (Division) within the Office of the Attorney General (AGO) regarding the applicability of the Open Meeting Law to the meeting at issue to determine whether the Town may cite exemptions to the Public Records Law to withhold responsive records. See G. L. c. 30A, 5 22(e) (describing the public nature of documents used at an open session). I closed the appeal pending the AGO's review and indicated I would opine on this matter upon completion of the AGO's review, if appropriate. The AGO issued a determination on May 7,20 18 and indicated "we find that the Committee is a public body of the Town Manager, and therefore not subject to the Open Meeting Law and did not violate the Open Meeting Law by failing to comply with the law's notice and 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

Katherine Feodoroff, Esq. Page 2 June 6,201 8 minutes requirements." Subsequent to this decision, Mr. Morgan appealed and SPR181743 was opened as a result. The Town's responses In its December 13'~re sponse, the Town indicates "[tlhe only documents which may be responsive to your request from the Strategic Planning Advisory Group (the 'Group') are drafts of the strategic plan being developed and notes of the Group members. No formal notices or agendas were created for the Group, to the extent that emails indicating the dateltime of meetings are responsive to your request, the email inviting the Group to the August 8,2017 meeting is enclosed herewith." The Town is withholding the "draft plans and the notes" under Exemptions (d) and (e). Exemption (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 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 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, 5 7(26)(d); see also Envtl. Protection Agency v. Mink, 4 10 U.S. 73, 89 (19 73) (purely factual matters used in the development of government policy are always subject to disclosure). Under its Exemption (d) claim, the Town indicates "[tlhe draft plans reflect policy positions being developed by the Group, which has not yet completed its charge and the disclosure of which could taint the deliberative process." With respect to the impact on deliberation, you note "the policy positions, at this early stage, could lead to misinterpretation or confusion because ideas and thoughts have not been fully vetted and may never become part of the plan. To release these draft documents at this early stage could have a chilling effect on the deliberative process in that controversial ideas may not be explored for fear of disclosure. The difficult questions the Group is tasked with exploring, i.e. identifying long-term municipal goals, determining paths to achieve those goals, assessing both positive and negative impacts, and vetting those impacts to create a comprehensive approach to present to the Town." With regard to segregable portions of the records, you indicate the draft Strategic Plan "is still in a very

Katherine Feodoroff, Esq. Page 3 June 6,2018 fragmented, unorganized state. At this point, the framework is not fully formed or outlined. Thus, segregation is not practical as nearly all components have not been fully vetted." You also note that certain records such as the draft Vision and Values Statement and the introductory portion of the Strategic Plan have been published on the Town's website. In a June 6,2018 email you indicate that "the Strategic Plan, due to the intense schedule of local officials working with limited resources, has not changed substantially or [been] significantly updated since the initial request. The Group has not met since September, 20 17 and the work product is still in a very early form, not close to substantial completion." I find that to the extent that the deliberation remains ongoing, the Town has met its burden to withhold draft plans under Exemption (d). It should be noted that a change in the status of the deliberation would impact the applicability of this exemption. Exemption (e) Exemption (e) applies to: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's memory of a work related activity or notes created by an employee to assist in preparing reports for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature; such files lack the permanent nature of a government file. The Town asserts that "[elach member of the Group took notes at the meeting. However, these notes were not shared with the Group but rather were created merely to assist that member in undertaking hislher responsibilities in preparing the strategic plan or participating meaningfully in the meetings." You further indicate that the "impressions, thoughts and ideas of the Group members as recorded by that member in his or her notes are not subject to disclosure, unless and until those impressions, thoughts or ideas are formally incorporated into the strategic plan, either in its final form or a reasonably complete form as more fully discussed in the

Katherine Feodoroff, Esq. Page 4 June 6,2018 deliberative process exemption section below. The final, or reasonably completed, strategic plan will become part of the governmental file and be subject to disclosure." I find the Town has met its burden to withhold responsive personal notes that were not shared and were not placed in the file of the governmental unit under Exemption (e). Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephen Morgan