Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20181131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13,2018 SPRl811131 Peter Wilson, Esq. Division of Capital Asset Management and Maintenance One Ashburton Place, 15 th Floor Boston, MA 02108 Dear Attorney Wilson: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (DivisionIDCAMM) to a request for public records. G. L. c. 66, tj 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 2,2017, Mr. Herman requested to set up time to view any and all documents related to the Division's efforts to get yacht and boat clubs to sign leases pursuant to Chapter 65 of the Acts of 2010. Previous appeals; in camera review This request was the subject of previous appeals and an in camera review. SPRl71155 9 Determination of the Supervisor of Records (November 16,201 7); SPRl7/161 8 Determination of the Supervisor of Records (November 22,2017); SPR1711667 Determination of the Supervisor of Records (December 1l ,201 7); SPR1711702 Determination of the Supervisor of Records (December 21,2017); SPR181054 Determination of the Supervisor of Records (January 26,20 18); SPRl81187 Determination of the Supervisor of Records (February 21,20 18); SPRl81302 Determination of the Supervisor of Records (March 23,2018 ); SPR181495 Determination of the Supervisor of Records (April 26,2018 ); SPRl81752 Determination of the Supervisor of Records (June 6,2018 ). In my June 6thd etermination, I orderqd the Division to provide this office with an un-redacted copy of the responsive records for in camera inspection. The Division provided the responsive records for in camera inspection. After reviewing the records in camera, I found that the Division did not meet its burden to withhold responsive records in their entirety under Exemption (d) of the Public Records Law. Particularly, I indicated that it was unclear how portions of the email records, such as the email header information and administrative discussions within the bodies of some of the emails, would taint the ongoing deliberative process if disclosed. SPR181752 Determination of the Supervisor of Records (July 9,2018 ). Following the in camera inspection, the Division provided a response on July 23,2018 , which included responsive records in redacted form. The Division - One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 (617) 727-2832- Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Peter Wilson, Esq. Page 2 August 13,2018 had claimed the redactions were made pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, 3 7(26)(d). Unsatisfied with the Division's response, Mr. Herman petitioned this office and this appeal, SPR181113 1, was opened as a result. 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. See Babets v. Sec'v of the Exec. Office of Human Sews., 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, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its previous responses, the Division had indicated that responsive records were withheld under Exemption (d) because of its ongoing policy deliberations regarding long term lease provisions for boat houses. Consequently, based on the in camera review of responsive records, coupled with the production of records in redacted form, I find the Division has met its burden to justify the redactions under Exemption (d). However, in Mr. Herman's petition for appeal, he claims ". . . it is my understanding that agreements have been reached with some of the clubs, including MIT and Mystic-Wellington, for which information has been redacted . . ." In light of Mr. Herman's claim, it is unclear whether the deliberative process regarding the aforementioned boat clubs have been completed. The Division must clarify this matter. As described above, the application of Exemption (d) is limited to recommendations on legal and policy matters found within an ongoing deliberative process. (emphasis added). See Babets, 403 Mass. at 237 n.8. Conclusion Accordingly, the Division is ordered to provide Mr. Herman 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

Peter Wilson, Esq. Page 3 August 13,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman