Tim Bonham v. Commonwealth Corporation (SPR 20192417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca s.· Murray Supervisor of Records December 17 , 2019 SPR19/2417 Daniel DeMaina · Director of Communications Commonwealth Corporation 2 Oliver Street 5th Floor ' Boston, MA 02109 Dear Mr. DeMaina: I have received the petition of Tim Bonham appealing the response of the Commonwealth Corporation (CommCorp) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bonham requested a copy of "the follow up EQA report completed by Comm Corp from this spring." CommCorp provided Mr. Bonham with a response on October 11, 2019, withholding a draft version of the report pursuant to Exemption (d). Unsatisfied with CommCorp's response, Mr. Bonham petitioned this office and this appeal, SPR 19/2417, 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, § 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. Appeal In its October 11th response, CommCorp states: "[t]here is currently a draft EQA report, but finalizing the EQA includes a clarification period with the Department of Youth Services 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

Daniel DeMaina SPR19/2417 Page 2 December 17, 2019 (DYS), Collaborative for Educational Services (CES), and Commonwealth Corporation." Comm Corp further states that "[b Jecause the EQA report is cunently in that clarification period, the draft report remains in the deliberative process, and as such is currently withheld under Exemption ( d) of the Massachusetts Public Records Law." 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). In its December 16th communication to this office, CommCorp states that it "ha[s] not yet produced the EQA repmi because it is still in the draft form and therefore remains in the deliberative process as contemplated under G.L. c. 4, § 7(26)(d) .... " CommCorp provides additional information regarding the remaining drafting process: "[d]ue to additional transcript data requested that must be delivered by Comprehensive Education Partnership, incorporation of that data into a new draft by Comm Corp staff, and then a final review of that draft by all necessary staff at DYS; the current target date for delivery of the EQA report is on or around January 24, 2020." Based on CommCorp's response, I find it has not met its burden to withhold the responsive draft report, in its entirety, from disclosure pursuant to Exemption (d). See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Specifically, it is unclear if CommC orp possesses reasonably completed factual reports or information that it can provide to Mr. Bonham. CommCorp must clarify this matter.

Daniel DeMaina SPR19/2417 Page3 December 17, 2019 Conclusion Accordingly, CommCorp is ordered to provide a response to Mr. Bonham consistent with this order, the Public Records Law, and its Access Regulations within ten (10) business days. 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: Tim Bonham