Amato J. Bocchino, Jr. v. Swampscott, Town of - Town Clerk (SPR 20211665)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2021 SPR21/1665 Susan J. Duplin Town Clerk Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Ms. Duplin: I have received the petition of Attorney Amato J. Bocchino, Jr. appealing the response of the Town of Swampscott (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 19, 2021, Attorney Bocchino requested, among other items, “[a]ll other records including correspondence and e-mails regarding Calyx Peak.” The Town responded on March 8, 2021, again on April 2, 2021, and finally on June 14, 2021, providing written responses and numerous records in redacted form. Unsatisfied with the Town’s response concerning a single responsive email, Attorney Bocchino appealed, and this case 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. 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 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

Susan J. Duplin SPR21/1665 Page 2 July 20, 2021 custodian must provide the responsive records. Current Appeal In his appeal petition, Attorney Bocchino “seek[s] an unredacted copy of a July 1, 2020 e-mail.” He notes that “[t]he Town’s only objection or at least its principal one is that the redacted part of the e-mail is exempt from disclosure under G.L. c. 4, Section 26(7)(d).” Attorney Bocchino contends that “the only decision the Town had to make regarding Calyx Peak was whether to moderate its virtual meeting. It does not seem the redacted part of the July 1, 2020 e-mail would contain any information about whether or not to moderate the meeting. . . the Board of Selectmen’s purported ‘decision’ to vote on Calyx Peak’s site was not authorized in the first place and is therefore a nullity.” Attorney Bocchino further contends that “the Town has not identified what ‘policy’ [Town employees] would supposedly have been deliberating in the July 1, 2020 e-mail or what the status of that ‘policy’ is today. And . . . the Board of Selectmen’s recent meeting was not part of an authorized ‘deliberation.’” Attorney Bocchino also argues that “[i]f the redacted part of the July 1, 2020 e-mail contains references to studies or reports which the Town made in support of whatever ‘policy’ was supposedly being deliberated, those references and the studies and reports themselves would not be exempt.” The Town’s Responses In its March 8, 2021 and June 14, 2021 responses, the Town claims to have redacted responsive records pursuant to Exemption (d). 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

Susan J. Duplin SPR21/1665 Page 3 July 20, 2021 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 June 14th response, under Exemption (d), the Town asserts that “the email sent on July 1, 2020 which noted various staff comments on drafts of documents . . . [was] redacted under exemption (d).” The Town further states “that inter-departmental comments and drafts which do not represent the final legal or policy position, or final public-facing document produced by the Town, fall under exemption (d).” The Town goes on to say that “any responsive records which included such drafts were withheld or redacted in accordance with Exemption (d).” In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (d) claim made by the Town to redact responsive records, the Town must provide this office with an un- redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Town’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Susan J. Duplin SPR21/1665 Page 4 July 20, 2021 Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Amato J. Bocchino, Jr., Esq. Tom McEnaney, Esq.