Lisa C. Goodheart v. Attorney General's Office (SPR 20192141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 1, 2019 SPR19/2141 Lorraine A. G. Tarrow, Esq. Assistant Attorney General/Records Access Officer Office of the Attorney General One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Lisa Goodheaii of Sugarman, Rogers, Barshak & Cohen, P.C. appealing the response of the Office of the Attorney General (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 16, 2019, Attorney Goodheaii, in three separate letters, requested thirty (30) categories ofrecords. The Office provided an initial response on June 5, 2019, aclmowledging receipt of the request. After a telephone conversation with a representative from the Office on June 7, 2019, Attorney Goodheart subsequently narrowed her request to the following: "(a) Any complaints against Hometown America from 2012 to the present; (b) Any records pertaining to concrete slabs and manufactured housing; ( c) Any records pertaining to gas supply pipes and manufactured housing; and ( d) Any records regarding the November 2017 update of the Guide." The Office responded on July 19, 2019, providing certain records in redacted form and denying access to other records pursuant to Exemptions (c) and (d) of the Public Records Law. G. L. c. 4, § 7(26)(c), (d). In a letter dated July 26, 2019, Attorney Godheart requested that the Office reconsider its previous decision to withhold certain records under Exemption ( d) and to provide an index of responsive records that were withheld. The Office responded on August 15, 2019, which included another set of responsive records. Subsequently, Attorney Goodheart requested clarification regarding the responsive records and the ongoing deliberative process on August 30, 2019. The Office responded on October 9, 2019, and provided a revised set of responsive records. Unsatisfied with the Office's response, Attorney Goodheart petitioned this office and this appeal, SPRl 9/2141, was opened as a result. It appears Attorney Goodheaii is only appealing the records withheld under Exemption (d). 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

Lorraine A. G. Tarrow, Esq. SPR19/2141 Page 2 November 1, 2019 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 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Goodheart's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a paiiy' s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Goodheart may wish to consider another means of seeking to obtain any existing responsive records. The Office's July 191 response " In its July 19, 2019 response, the Office indicates that upon agreement, it further modified Attorney Goodheart's first 3 requests to expedite its response and to avoid assessing fees. The Office enclosed 167 pages of responsive records in redacted form. The Office explains

Lorraine A. G. Tarrow, Esq. SPR19/2141 Page 3 November 1, 2019 that records were redacted under Exemption (d), because they contain" ... e-mail communications that possess a deliberative or policymaking character in that they reflect the thought processes regarding, and legal analyses that relate to, an ongoing deliberative process, i.e., the development of reasoned courses of action, the disclosure of which would inhibit current and future deliberations and undermine the AGO's ability to evaluate future matters." The Office further explains that it withheld " ... in their entirety email communications and drafts under . [Exemption ( d)]. These records fall within this exemption to the definition of public records as described more fully above, however, appropriate redaction in this case would render these records meaningless." The Office's August 15th response In its August 15, 2019 response, with respect to Exemption ( d), the Office asse1is that it " ... properly redacted and withheld communications that reflect the thought processes regarding, and legal analyses that relate to, the development of reasoned courses of action in the performance of [the Office's] regulatory and law enforcement functions ..." The Office, however, indicates that although" ... drafts of deliberative or policymaking materials are exempt from disclosure under [Exemption (d),]" it is providingl,035 pages of records "that comprise drafts of the 2017 Edition of The Attorney General's Guide to Manufactured Housing Community Law." The Office's October 9th response In its October 9, 2019 response, the Office provided a revised set of all the drafts and their corresponding emails. The Office asserts that "[t]he 'deliberative process' exemption to the public records law, G;L. c. 4, § 7, cl. 26( d), allows the withholding of certain records or portions of records that possess a deliberative or policymaking character' and relate to an ongoing deliberative process." The Office explains that "[b]y its nature, 'The Attorney General's Guide to Manufactured Housing Community Law Guide' is part of an ongoing plan of regulation and enforcement that does not resolve or terminate on the date that related information is finalized and made public. The one (1) redacted and five (5) withheld records consist solely of intra- and inter-office e-mails between and among the [Office] and other agency staff and consultants that contain discussion of legal issues, findings and recommendations, and various forms of 'candid' thinking relating to 'policy positions being developed."' The Office fmiher explains that "[e]ach is connected to the [Office's] ongoing directives to regulate, and enforce the policies concerning, manufactured housing communities and not just to completion of an interim step - the publication of the 201 7 Guide. If disclosed, the withheld and redacted records could reveal legal strategies and policies that may impede current or future investigations, undermine the defense of any legal challenges, or prematurely disclose strategies in current or planned enforcement actions within the [Office's] Manufactured Housing Unit." Consequently, the Office asserts that the records were redacted and withheld, "because they possess a deliberative or policymaking character in that they reflect [the Office's] legal thought . processes, and they relate to an ongoing deliberative process, i.e., the [Office's] continuing

Lorraine A. G. Tarrow, Esq. SPR19/2141 Page 4 November 1, 2019 regulation and enforcement of manufactured housing communities." With respect to redaction ofresponsive records, the Office indicates that" ... proper redaction would extensively blacken and render these records meaningless, and therefore withholding them in their entirety is appropriate in this instance." 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 a representative from the Office inte11ds on providing Attorney Goodheart with a supplemental response. Said response is to be made in accordance with the Public Records Law and its Access 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, ~[~ Supervisor of Records cc: Lisa Goodheart