Shawn M. McCormack v. Medford, City of - Law Department (SPR 20213237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2021 SPR21/3237 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, on behalf of Sanctuary Medicinals, Inc., 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.” Previous Appeal This request was the subject of a previous appeal. See SPR21/2991 Supervisor of Records Determination (November 19, 2021). In my November 19th determination, I ordered the City to clarify how the deliberative process that involves the responsive records remains ongoing, and how release of the records could taint such an ongoing process. Subsequently, the City responded on December 6, 2021. Unsatisfied with the City’s response, Attorney McCormack 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 agency or 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. SPR21/3237 Page 2 December 22, 2021 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 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. Current Appeal In his appeal petition, Attorney McCormack contends that “the law does not require the public to wait until the Mayor’s office awards contracts to understand the scoring of an independent committee whose work has concluded.” He goes on to argue that “if publication of the total scores poses no threat of undermining the Mayor’s deliberative process, there is no rational basis to believe that the public disclosure of the individual scoring sheets of the CAC members would do so either.” The City’s December 6th Response In its December 6, 2021 response, the City reiterates that it is withholding responsive records pursuant to Exemption (d) of the Public Records Law. 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. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Kimberly M. Scanlon, Esq. SPR21/3237 Page 3 December 22, 2021 Under Exemption (d), the City argues the following: [T]he City of Medford is withholding individual scoring sheets at this time, pursuant to exemption (d). . . . [T]he individual scoring sheets have not been publicly disclosed, to date, including at any meeting of the City’s Cannabis Advisory Committee. Such information pertains directly to the Mayor’s ongoing deliberative process with respect to marijuana Host Community Agreement matters and directly informs the Mayor’s policy determination with respect to Host Community Agreement applications, which is ongoing at this juncture. Where the City has explained how the scoring sheets are part of an ongoing deliberative process, and how their release would taint that process, I find the City has met its burden to withhold the responsive records at this time. Please be advised, any change in the status of the ongoing deliberative process may affect the application of Exemption (d). See G. L. c. 4, § 7(26)(d). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney McCormack is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Shawn M. McCormack, Esq.