Alyssa Anderson v. Boston, City of - Public Schools (SPR 20210236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16, 2021 SPR21/0236 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Alyssa Anderson appealing the response of the City of Boston Public Schools (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 6, 2021, Ms. Anderson requested, “…copies of all emails including 1 or more of the following 3 search terms [for named individuals] or 430818 from February 25, 2019 forward that are to or from [numerous emails [ending in] bostonpublicshools.org …” Unsatisfied with the City’s response, Ms. Anderson appealed and SPR21/0236 was opened as 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. 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

Shawn A. Williams, Esq. SPR21/0236 Page 2 February 16, 2021 The City’s January 25th Response In its January 25th response, the City produced records with redactions pursuant to Exemption (d) of the 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 response, the City asserted “… the [redactions were made] …. to preserve the ‘deliberative process’ nature of those particular emails, which necessarily includes all of the email text. I have attempted to retain the sender and recipient of those emails …” The Department has not explained how the disclosure of the emails would taint the deliberative process. As a result, the Department has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). The Department is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). As a result, I find that the City did not satisfy its burden in responding to this records request. Accordingly, the City is ordered to provide Ms. Anderson with a response to her request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at

Shawn A. Williams, Esq. SPR21/0236 Page 3 February 16, 2021 pre@sec.state.ma.us. Ms. Anderson may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Alyssa Anderson