Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20201461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 4, 2020 SPR20/1461 Christopher Guerin Records Access Officer Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Mr. Guerin: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management and Maintenance (Division/DCAMM) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 9, 2020, Mr. Herman requested: [H]ard copies and electronic copies of any and all internal communications within the Division of Capital Asset Management and Maintenance related to the Friends of the Paragon Carousel. This is for the period January 1, 2019 to the present[.] Communications include, but are not limited to, emails, letters, memoranda, faxes, and notes. Please be aware that if any related communications were done through personal email accounts, text messaging, etc., these vehicles must be searched for responsive public records. The Division provided a response on August 24, 2020, including certain responsive records and denying access to others pursuant to Exemption (d) of the Public Records Law, as well as the attorney-client privilege. G. L. c. 4, § 7(26)(d). Unsatisfied with the Division’s response, Mr. Herman petitioned this office and this appeal, SPR20/1461, was opened as a result. While this appeal was pending, the Division provided a supplemental response on September 1, 2020. 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 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

Christopher Guerin SPR20/1461 Page 2 September 4, 2020 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. 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 Division’s August 24th and September 1st responses In its August 24, 2020 response, the Division explains that “. . . certain documents are the subject of ongoing lease negotiations, and are therefore confidential and subject to Exemption (d) of the Public Records Law, G.L. c. 4, §7(26)(d), the deliberative process exemption, which allows records custodians to withhold from disclosure records during a policy development procedure.” The Division also indicates that “[c]ertain of the exempt documents, or portions thereof, may also be subject to the attorney-client privilege.” In its September 1, 2020 supplemental response, the Division states that “[i]ntra-agency discussions among DCAMM personnel regarding the treatment and/or disposition of the subject carousel and adjacent property, including lease negotiations among the parties, are ongoing and therefore subject to Exemption (d) of the Public Records Law, G.L. c. 4, §7(26)(d). Premature disclosure of the requested communications could taint the ongoing deliberative process, placing the Commonwealth at a disadvantage, the avoidance of which is the underlying purpose of the exemption. We . . . understand this exemption will lapse upon execution of a lease.” The Division asserts that it “. . . did not, and are not, asserting attorney-client privilege at this time, but noted in [its] response that, upon completion of negotiation of the lease agreement, certain of the requested records may be subject to the privilege.” 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).

Christopher Guerin SPR20/1461 Page 3 September 4, 2020 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). Based on the Department’s response it is unclear what portions of the records it is withholding from disclosure. See G. L. c. 66, § 10(b)(iv) (a written response shall identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). Consequently, the Division must identify the records in its possession that were withheld under the claimed exemption. Further, I find the Division must clarify whether the withheld portions of the records contain any factual information that can be segregated from the responsive records, as Exemption (d) does not apply to such information. 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, § 10(a). Conclusion Accordingly, the Division is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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: Colman Herman