Jon Sylbert v. Monterey, Town of - Select Board (SPR 20200483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 19, 2020 SPR20/0483 Melissa Noe Administrative Assistant Town of Monterey 435 Main Rd. P.O. Box 308 Monterey, MA 01245 Dear Ms. Noe: I have received the petition of Jonathan Sylbert appealing the response of the Town of Monterey (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sylbert requested "all drafts of the Collins Center's Management and Operations Review report that have been submitted to the Select Board during the this process." The Town initially provided a response to Mr. Sylbert on February 19, 2019 by denying access to records under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). The Town provided a supplemental response on March 11, 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, § 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. 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

Melissa Noe SPR20/0483 Page 2 March 19, 2020 Appeal 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 Bab ets 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 February 19th response the Town indicated "[w]e are in receipt of your email request dated February 14, 2020 for a draft report from the UMass Collins Center and respectfully decline to disclose drafts that reflect the deliberative process. In this regard, pursuant to [G. L. c. 4, § 7(26)(d)] any draft reports are exempt under the Public Records Law. This exemption applies as there are no reasonably complete factual studies which can be drawn from factual investigations that have currently been released, release of any draft versions could taint the deliberative process if prematurely disclosed." Basis of the appeal In his appeal petition Mr. Sylbery indicated "I believe the Select Board has no legal basis for denying my appeal. Furthermore, at a Select Board meeting of March 4, 2020, the Select Board stated that they have the final report and discussed releasing it." Subsequent to the opening of this appeal, the Town provided a supplemental response on March 11th. In this response you assert "[p] lease note that the Monterey Select Board (through me) has sent Mr. Sylbert the information that he requested now that the final report has been officially accepted and released and would consider this matter to be closed."

Melissa Noe SPR20/0483 Page 3 March 19, 2020 Mr. Sylbert provided correspondence to this office later that same day in which he provides information regarding the content of the records he received. He notes, in part, "[t]herefore the report was 'reasonably completed' when I made my public records request, and as such, the drafts were not exempt under G.L. c. 4, section 7, subparagraph 26 ( d). This means the Select Board withheld the. draft reports I requested without cause for a over month, between February 7, 2020 and March 11, 2020. This remains the substance of my appeal." Mr. Sylbert also asserts "[i]t is not enough that the Select Board has finally released the repmi drafts. They had no authority to prevent the RAO from fulfilling my records request in the first place ...." and that "[m]y concern is that, without remedial action on the part of the Public Records Division, the Select Board will continue to subvert the Public Records law. The [T]own no longer even has an RAO to address public records requests." With respect to the portion of Mr. Sylbert's appeal related to the Town's Exemption (d) claim, I find it is uneccessary to opine fmiher because the Town has now provided responsive records. However, as noted above, the Town should be aware that Exemption ( d) only applies to recommendations on legal and policy matters related to an ongoing deliberative process. See Babets, 403 Mass. at 237 n.8. Further, purely factual matters used in the development of government policy are subject to disclosure. See Envtl. Protection Agency, 410 U.S. at 89. In addition, each municipality shall designate 1 or more employees as records access officers. In a municipality, the municipal clerk, or the clerk's designees, or any designee of a municipality that the chief executive officer of the municipality may appoint, shall serve as records access officers. G. L. c. 66, § 6A(a). Further, each municipality shall post in a conspicuous location at its offices and on its website, if any, the name, title, business address, business telephone number, and business email address of each records access officer. G. L. c. 66, § 6A( d). The Town must abide by these provisions with respect to the designation of a records access officer. Sincerely, ~~ Supervisor of Records cc: Jonathan Sylbert