Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20201785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2020 SPR20/1785 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. Previous appeal The requested records were the subject of a previous appeal. See SPR20/1461 Determination of the Supervisor of Records (September 4, 2020). In my September 4th determination, I directed the Division to identify the withheld records and to explain whether the responsive records contain factual information that could be segregated from the records. Subsequently, the Division provided a response on September 21, 2020. Unsatisfied with the Division’s response, Mr. Herman petitioned this office and this appeal, SPR20/1785, was opened as a result. 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 SPR20/1785 Page 2 October 7, 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 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 September 21st response In its September 21, 2020 response, the Division indicates that it withheld the following categories of records: “(1) Emails regarding proposed lease terms and obligations, and requested changes to lease obligations by Carousel; (2) Drafts of lease and exhibit of renovation obligations; (3) Emails regarding status of lease discussions and/or outstanding lease issues with Carousel; (4) Emails regarding communications from/with Carousel counsel related to lease negotiations and representation issues; and (5) Emails regarding comments and input of DCR to lease, exhibit of obligations and Carousel representation issues.” The Division further explains that “. . . no factual studies or reports have been, nor are being, developed, therefore DCAMM has no responsive reports or studies in its possession or control and there are no factual reports that might be segregable from the withheld correspondence. Further, the withheld records do not contain any other non-exempt, segregable factual information.” The Division contends that “[p]remature 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.” The Division notes that records that are not part of the ongoing discussions have been provided. 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

Christopher Guerin SPR20/1785 Page 3 October 7, 2020 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). Based on the Division’s response, to the extent that records constitute intra-agency or inter-agency communications, I find the Division may withhold those records from disclosure under Exemption (d). Records that fall outside these communications may not be withheld under Exemption (d) and must be disclosed. 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