Steve Brown v. Executive Office of Public Safety & Security (SPR 20191660)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 28, 2019 SPR19/1660 Arielle Mullaney, Esq. Assistant General Counsel Executive Office of Public Safety and Security 1 Ashburton Place Boston, MA 02108 Dear Attorney Mullaney, I have received the petition of Steve Brown of WBUR appealing the response of the Executive Office of Public Safety and Security (EOPSS) to a request for public records. G. L. c. 66, § lO(A); see also 950 C.M.R. 32.08(1). Specifically, Mr. Brown requested a copy of "records for the time period January 1, 2018 to presentany draft recommendations prepared by EOPSS regarding civil cannabis citations" as well as "any emails or text messages to or from EOPSS staff regarding civil cannabis citations." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1518 Determination of the Supervisor of Records (August 13, 2019). I closed SPR19/1518 based on EOPSS 's provision of a response, including responsive records on August 12, 2019. Unsatisfied with EOPSS's response, Mr. Brown petitioned this office and this appeal, SPR19/1660, was opened as a result. 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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Arielle Mullaney, Esq. SPR19/1660 Page 2 August 28, 2019 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 pmiion 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. EOPSS's August Ji" response In its August 12, 2019 response, EOPSS provided a spreadsheet listing the emails it has in its possession. EOPSS further indicated that with respect to" ... the other pmiion of [Mr. Brown's] request, [it] ha[s] ... been informed that the repmi is still in progress and as such all 'draft recommendations' as [Mr. Brown] seek[s] are exempt from public disclosure pursuant to G.L. c. 4, §7 cl. 26 (d) which provides for the withholding of 'inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency."' EOPSS asserts that it " ... is entitled to withhold such records in order to avoid the release of materials that could taint the deliberative process if prematurely disclosed. Babets v. Sec'y of the Executive Office of Human Servs., 403 Mass. 230,237 n.9 (1988). Such 'privilege advances the public interest in well considered executive policymaking, by promoting candid and unconstrained communication and exchange of ideas between and among executive policymakers and their advisors.' Id." 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, 403 Mass. at 237 n.8. 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. Minic, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Arielle Mullaney, Esq. SPR19/1660 Page 3 August 28, 2019 Based on its response, although EOPSS claims that" ... the report is still in progress[,]" it does not explain with specificity what legal or policy positions the draft recommendations are related to, nor does it explain how their disclosure would taint the deliberative process. As a result, EOPSS has not met its burden to explain how the records are exempt from disclosure in their entirety pursuant to Exemption (d). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). EOPSS is reminded that "reasonably completed factual studies or reports on which the 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). EOPSS must clarify these issues. Conclusion Accordingly, EOPSS is ordered to provide Mr. Brown 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, ~ Rebecca S. Murray Supervisor of Records cc: Steve Brown