Rachel Roth v. Division of Capital Asset Management and Maintenance (SPR 20212813)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2021 SPR21/2813 Christopher D. Guerin, Esq. Special Counsel Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Rachel Roth appealing the response of the Division of Capital Asset Management and Maintenance (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 18, 2021, Ms. Roth requested the following: - the Notice to Proceed, as referenced in 4.5.2 of the contract between DCAMM and HDR Architecture, P.C., DOC2106ST1, dated 4th day of June 2021; and - the Work Plan, as referenced in section 4.5.3 of the contract between DCAMM and HDR Architecture, P.C., DOC2106ST1, dated 4th day of June 2021. The Division responded on September 3, 2021. Unsatisfied with the response, Ms. Roth petitioned this office and this appeal, SPR21/2813, 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(d)(iv) (written response must “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…”); 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 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 D. Guerin SPR21/2813 Page 2 November 4, 2021 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. The Division’s September 3rd response The Division responded on September 3rd and produced the Notice To Proceed and advised that the draft Work Plan is being withheld pursuant to Exemption (d) of the Public Records Law. 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). The Division opined that, “[t]he subject plan, on which ongoing policy position development is or may be based, is incomplete and in draft form at this date and therefore exempt from mandatory disclosure. Exemption (d) is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed. We do anticipate it being completed in the next few weeks, therefore if you have a continued interest in this record, please check back with us in two to three weeks.” The Division has not explained how the disclosure of the subject plan would taint the deliberative process. As a result, the Division has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). The Division 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).

Christopher D. Guerin SPR21/2813 Page 3 November 4, 2021 As a result, I find that the Division did not satisfy its burden in responding to this records request. Order Accordingly, the Division is ordered to provide Ms. Roth with a response to the request 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: Rachel Roth