Shawn M. McCormack v. Medford, City of - Law Department (SPR 20212991)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 19, 2021 SPR21/2991 Kimberly M. Scanlon, Esq. City Solicitor Records Access Officer City of Medford 85 George P. Hassett Drive Medford, MA 02155 Dear Attorney Scanlon: I have received the petition of Attorney Shawn M. McCormack of Davis Malm appealing the response of the City of Medford (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2021, Rebecca Rutenberg of Vicente Sederberg LLP, on behalf of Sanctuary Medicinals, Inc., requested “a copy of all individual scoring sheets completed for the City of Medford’s recent Host Community Agreement application process.” On October, 19, 2021, Ms. Rutenberg reiterated her request, asking for “a copy of all individual scoring sheets for the City’s recent marijuana Host Community Agreement [HCA] applications.” The City responded on November 2, 2021, citing Exemption (d) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(d). Unsatisfied with the City’s response, Attorney McCormack appealed on behalf of Sanctuary Medicinals, Inc., 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 agency or municipality 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Kimberly M. Scanlon, Esq. SPR21/2991 Page 2 November 19, 2021 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. Current Appeal In his appeal petition, Attorney McCormack contends “that Exemption (d) does not apply to the requested materials because responsive documents do not relate to an ‘ongoing deliberative process’ for the simple reason that deliberations are over.” He goes on to argue the following: The CAC’s deliberative process—even if awarding HCAs is considered a “policy” decision—is not “ongoing.” The CAC’s involvement is over. There is no concern about avoiding the release of materials “that could taint the deliberative process if prematurely disclosed” because the CAC’s scoring is complete, the combined totals and average totals of each applicant is public knowledge, and the Mayor is in receipt of the ranked list. The City’s November 2nd Response In its November 2, 2021 response, the City cites Exemption (d) of the Public Records Law for withholding responsive records. See G. L. c. 4, 7 (26)(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 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 ---------------------------

Kimberly M. Scanlon, Esq. SPR21/2991 Page 3 November 19, 2021 matters used in the development of government policy are subject to disclosure). Under Exemption (d), the City argues that “the records requested . . . are being withheld at this time pursuant to Exemption (d) since . . . this relates to an ongoing matter currently under review at this time.” Based on the City’s response, and the information provided in Attorney McCormack’s appeal petition, I find it is unclear how the deliberative process that involves the responsive records remains ongoing. Additionally, where information involving the score sheets has already been released to the public, it is unclear how release of the score sheets themselves could taint an ongoing deliberative process. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Attorney McCormack with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Shawn M. McCormack, Esq.