Shannon M. Warren v. Cambridge, City of - Law Department (SPR 20191527)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 6, 2019 SPR19/1525; SPR19/1527; SPR19/1528 Seah Levy Records Access Officer Cambridge Law Department 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Shannon M. Warren, Esq. appealing the response of the City of Cambridge's Law Department (Department) to requests for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Warren requested records within the Department's possession related to the following addresses: 7 Mercer Circle (SPR19/1525), 2 Mercer Circle (SPRl 9/1527), and 132 Brattle Street (SPRl 9/1528). Unsatisfied with the Department's responses in which they note that "the information is exempt from disclosure ... " for all three records requests, citing Exemption (d) of the Public Records Law, Attorney Warren petitioned this office and this appeal was opened as a result. Tl,e Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govermnental records are public records. G. L. c. 66, § IOA(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. The Department's responses A representative from the Department responded to Attorney Warren's requests with 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

Seah Levy SPR19/1525; SPR19/1527; SPR19/1528 Page 2 August 6, 2019 responses sent on April 26, 2019. In their response, the Department asse1is "[t]he information requested is exempt from disclosure." The Depaiiment cites Exemption {d) of the Public Records Law as a means to withhold the requested records. 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). Conclusion Subsequent to the intervention by a staff member of the Public Records Division, I learned that the Department responded on August 6, 2019 to Attorney Warren's request with a subsequent response. Attorney Warren may appeal the substantive nature of the Depaiiment's response within ninety (90) days. See 950 C.M.R. 32.08(1). Accordingly, I will consider this appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Shannon M. Warren, Esq.