Tom Ayotte v. Brookline, Town of - Town Administrator (SPR 20200979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2, 2020 SPR20/0979 Melvin Kleckner Town Administrator Town of Brookline 333 Washington Street, 6th Floor Brookline, MA 02445 Dear Mr. Kleckner: I have received the petition of Scott Ananian appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 17, 2020, Mr. Ananian requested: In the Town Administrator’s letter to the Select Board on June 1, 2020, he wrote, “In order to create multiple options, we asked each department head to complete an exercise that identified and prioritized up to a 10% cut in their budget.” I would like to request a copy of that exercise for the Brookline Police Department, showing the cuts you anticipated under a 10% budget reduction from the original FY21 proposal. The Town provided a response on June 19, 2020, denying access to responsive records pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the Town’s response, Mr. Ananian petitioned this office and this appeal, SPR20/0979, 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, § 10A(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, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Melvin Kleckner SPR20/0979 Page 2 July 2, 2020 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s June 19th response In its June 19, 2020 response, the Town asserts that it considers the responsive records “. . . to be an inter-agency memorandum that is protected from public disclosure by M.G.L. c. 4, § 7(26)(d), or the so-called ‘deliberative process exemption’.” The Town explains that “[t]his exemption was adopted by the Massachusetts Legislature in order to protect internal communications such as this during the development of policy, and was designed to encourage a wide interchange of ideas and information among and within governmental agencies while developing policy. The purpose of the exemption is to foster frank internal discussion without the fear or inhibitions which public disclosure might engender.” The Town contends that should it “. . . release internal exercises such as this that are completed with the expectation of privacy, the result would be to limit the willingness of a department head to produce creative and strategic solutions for discussion with management.” 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).

Melvin Kleckner SPR20/0979 Page 3 July 2, 2020 Although the Town asserts that it considers the responsive records “. . . to be an inter- agency memorandum that is protected from public disclosure by M.G.L. c. 4, § 7(26)(d),” the Town does not explain with specificity what policy positions the requested records are related to, nor whether the deliberative process remains ongoing. It is additionally uncertain whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It should also be reiterated that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Conclusion Accordingly, the Town is ordered to provide Mr. Ananian with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Scott Ananian