Kim Sherwood v. Town of Topsfield - Town Clerk (SPR 20181713)

~. I . . ' • "' •" The Common,vealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2018 SPR18/1713 Mary E. Willis Town of Topsfield 8 W. Common Street Topsfield, MA 01983 Dear Ms. Willis: I have received the petition of Kim Sherwood appealing the response of the Town of Topsfield (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Sherwood requested "a copy, in whatever draft form that cunently exists, of the 5 year Financial Forecast. .. " The Town denied her request claiming the responsive record is exempt from disclosure pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d ). Tlte 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, § 1O (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950.C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Mary E. Willis SPR18/1713 Page2 November 30, 2018 Exemption (d ) In its response, the Town indicates that it is withholding"[o ]ne potentially responsive record," pursuant to Exemption ( d). The Town states that "the updated report, when completed, will be presented to the Board of Selectmen and discussed at the upcoming BOS meeting." The Town indicates that it "anticipate[s ] this report being available after the Town has received a notice from the Depatiment of Revenue with our Certification of Free Cash from Fiscal Year 2018." The Town identifies the withheld responsive record as an "electronic document entitled 'Topsfield Draft Forecast Worksheets for FY20 Budget Planning"' and asserts that Exemption ( d) "provides limited executive privilege for policy development within an ongoing deliberative process." The Town asse1is that "any records that relate to ongoing deliberative matters, including matters of a policy nature, including the development of collective bargaining decisions for the Town, which are in progress, but have not been finalized, will be withheld under Exemption ( d) at this time." 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 maybe 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 repotis which are reasonably complete and inferences which can be drawn from factual investigations, even iflabeled 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). The Town's written response does not explain with specificity what legal or policy positions this record is related to, nor does it explain how its disclosure would taint the deliberative process. The response merely describes the scope of Exemption (d ) without explaining how this particular record fits within the claimed exemption. As a result, the Town has not explained how the responsive record is exempt from disclosure in its entirety pursuant to Exemption (d). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly constrned and are not blanket in nature). Any non-exempt, segregable potiion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). The Town is reminded that "reasonably completed factual studies or reports on which the

Mary E. Willis SPR18/1713 Page 3 November 30, 2018 development of such policy positions has been or may be based" are not permitted to be withheld. See G. L. c. 4, §7 (26)(d ). Co11clusio11 Given that the Town has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Town is ordered to review the records, redact where necessary, and provide Ms. Sherwood with responsive records, 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, ~ Rebecca S. Murray Supervisor of Records cc: Kim Shetwood