Tamar Mentzel v. Cambridge, City of - Office of the City Solicitor (SPR 20180849)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 20, 2018 SPR18/849 Jennifer Simpson City of Cambridge - Office of the City Solicitor 795 Massachusetts A venue Cambridge, MA 02139 Dear Ms. Simpson: I have received the petition of Tamar Mentzel appealing the response of the City of Cambridge Office of the City Solicitor (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Mentzel requested a copy of "records regarding [ an identified] inactive applicant file for the Inclusionary Housing Rental Program, including the communications form/to/between Cambridge Development Department and Cambridge Housing Authority regarding [a] Section 8 voucher." The City responded to her request by providing responsive records and indicating "[t]he City is withholding and has redacted records related to public assistance" pursuant to G. L. c. 66, § 17 A as it operates through Exemption (a) of the Public Records Law, Exemption (b) of the Public Records Law and Exemption ( d) of the Public Records Law. G. L. c. 4, § 7(26)(a), (b), (d). 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

Jennifer Simpson SPR18/849 Page 2 June 20, 2018 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, Provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act).

Jennifer Simpson SPR18/849 Page 3 June 20, 2018 The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). 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 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). Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City's response did not contain the specificity required in a denial of access to public records. Instead, the City's response merely cites Exemptions (a), (b), and (d) without any further explanation as to the exemptions' applicability to the requested records. The City is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the City did not satisfy its burden in responding to this records request. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations.

Jennifer Simpson SPR18/849 Page4 June 20, 2018 Based on the City's response and this office's review of the records provided to Ms. Mentzel, it is unclear what portions of the responsive records were redacted and under what exemption(s). Similarly, it is unclear what records were withheld in their entirety and under what exemption(s). The City must provide a response to Ms. Mentzel that provides additional information regarding the City's responsive records. The City must identify any records, categories of records or portions of records that it intends to withhold and provide the specific reasons for such withholding, including the specific exemption or exemption upon which the withholding is based. G. L. c. 66, § lO(b)(iv); see Flatley at 511 (custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney made contact with your office about this matter and a representative from the City indicated that the City plans to provide another response to Ms. Mentzel. Conclusion Accordingly, the City is ordered to provide Ms. Mentzel 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, fJdJe~ fVKlAAA,~ 0 Rebecca S. Murray Supervisor of Records cc: Tamar Mentzel