Jillian M. Ryan v. Yarmouth, Town of - Town Clerk (SPR 20180762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 11, 2018 SPRlS/762 Phillip Gaudet Town of Yarmouth-Town Clerk 1146 Route 28 South Yarmouth, MA 02664 Dear Mr. Gaudet: I have received the petition of Jillian Ryan, Esq. on behalf of Leah M. Barrault, Esq. both of Pyle Rome Ehrenberg PC appealing the response of the Town of Yarmouth (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 24, 2018, Attorney Barrault requested "copies of any draft reports provided by Matrix and any requested or suggested edits of such reports prepared by the Town." The Town provided responses on May 17, 2018, and May 24, 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 Town's response, Attorney Ryan petitioned this office and this appeal, SPRl 8/762, 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 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. 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

Phillip Gaudet SPR18/762 Page 2 June 11, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's May 1111 and May 2i11 responses In its May 17, 2018 response, the Town indicated that "[t]he Matrix report will be provided to all parties upon its completion." In its May 24, 2018 response, the Town indicated that it is unable to provide a copy of the report at this time because "it is still an unfinished document." The Town explains that "[t]he Matrix Consultant is still responding to the Town's commentary related to the draft, which may alter the study and policy positions contained therein." The Town asserts that "[a]t this stage, disclosure could lead to misinterpretation or confusion because ideas and thoughts have not been fully vetted and may never become part of the study. 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." Exemption (d) The Town claimed it withheld the Matrix report 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 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 Town claims disclosure of the Matrix report "may alter the study and policy positions contained therein," it is unclear the nature of the policy positions that are being developed. According to Attorney Ryan, the Matrix Consulting Group was hired to conduct a

Phillip Gaudet SPR18/762 Page 3 June 11, 2018 review and produce a report related to the Fire Department's efficiency. However, it is unclear whether the report contains recommendations on legal and policy matters related to any positions that are being deliberated by the Town. Also, I find the Town has not established how the Matrix report at issue is an inter agency or intra-agency memorandum or letter as required by Exemption ( d). In particular, the Town has not demonstrated that the responsive record was 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). Further, it is unclear how the report may be withheld in its entirety. The Town must determine whether there are any portions of the responsive record 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, § 10( 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 the report 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 Given that the Town did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Town is ordered to review the report, redact where needed and provide Attorney Ryan with the responsive record, 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 Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, 111.ltuA ~ Rebecca S. Murray Supervisor of Records cc: Jillian Ryan, Esq.