Allison Jarmanning v. Somerville, City of - City Solicitor (SPR 20181038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 30, 2018 SPR1811038 Francis X. Wright Jr., Esq. City of Somerville - City Solicitor 93 Highland Avenue Somerville, MA 02 143 Dear Attorney Wright: I have received the petition of Alison Jarmanning appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 4,2018, Ms. Jarmanning requested "[tlhe questionnaire provided to the City from Amazon related to the company's search for a second headquarters." Ms. Jarmanning notes that she "would like both the questions Amazon sent to [the City], and [the City's] answers. . . ." The City provided a response on June 15, 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 City's response, Ms. Jarmanning petitioned this office and this appeal, SPR1811038, was opened as a result. Tlze 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, 10A(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, 51 1 (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

Francis X. Wright Jr. Page 2 July 30,2018 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. Exemption (d) The City claims it withheld responsive records 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 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'~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 malting 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). Tlze City's June 15~'' response In its June 15,201 8 response, the City indicates that both records are exempt from disclosure under Exemption (d). The City asserts that "[d]isclosure of Amazon's questionnaire, which was unique to the City, and the City's responses to that questionnaire at this juncture would prematurely reveal the City's proposal, putting the City's and the City of Boston's proposal at a competitive disadvantage relative to other Amazon semi- finalists." As such, the City contends that "[als Amazon's evaluation process is still ongoing, the requested records are exempt from disclosure pursuant to the deliberative exemption at this time." The City notes that ". . . should Amazon eliminate Somerville's and Boston's joint proposal, the City will immediately release the requested material . . ." In camera inspection At this time, in order to facilitate a determination as to the applicability of the Exemption (d) claim made by the City to withhold responsive records in their entirety, the City should provide this office an un-redacted copy of the responsive questionnaire and the City's responses

Francis X. Wright Jr. Page 3 July 30,2018 for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (19 8 1) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede ow ability to function and would certainly affect our credibility within the legal community. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the records within 15 business days of this determination. Sincerely, Rebecca S. Murray Supervisor of Records cc: Alison Jarmanning