Lesley Hawkins v. Medford, City of (SPR 20220248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2022 SPR22/0248 Kimberly Scanlon, Esq. Assistant City Solicitor City of Medford 85 George P. Hassett Drive Medford, MA 02155 Dear Attorney Scanlon: I have received the petition of Lesley Hawkins, Esq. 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 20, 2021, Attorney Hawkins’ colleague requested: [1] Any and all records, whether electronic, digital, audio/visual or written, regarding Medford's Cannabis Advisory Committee's review for purposes of making a recommendation to the Mayor "as to whether any Respondent has met the minimum criteria to be recommended to the Mayor for negotiation of a Host Community agreement[;]” [2] Copies of any and all "rankings of Respondents based on the review criteria in Addendum A to this enabling ordinance, including but not limited to numeric rankings and weights assigned to the various criteria set out in Addendum A[;]” [3] Any and all records reflecting rankings by the Cannabis Advisory Committee of respondents that have been drafted, edited and/or finally submitted to the Mayor[;] [4] Any and all records of Cannabis Advisory Committee requests to respondents for additional information, interviews or presentations[, and;] [5] Copies of any and all submittals by respondents, to the Cannabis Advisory Committee, excepting security related information furnished by respondent. On December 8, 2021, the City provided records responsive to Requests #1, 2, 4, and 5 but withheld records in their entirety for Request #3 pursuant to Exemption (d) 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 Scanlon, Esq. SPR22/0248 Page 2 February 9, 2022 the Public Records Law. On January 13, 2022, Attorney Hawkins reiterated Request #3. On January 28, 2022, the City provided an additional response. Unsatisfied with the City’s response, Attorney Hawkins petitioned this office and this appeal, SPR22/0248, 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. 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. The City’s December 8th and January 28th Responses In its December 8, 2021 and January 28, 2022 responses, the City withheld records responsive to Request #3 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, §

Kimberly Scanlon, Esq. SPR22/0248 Page 3 February 9, 2022 7(26)(d); -se-e -al-so- -E-nv-t-l. -P-ro-t-ec-ti-o-n -A-g-e-nc-y- v-. -M-i-n-k, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). On December 8, 2021, the City stated, “…please be advised that the City…is withholding individual scoring sheets…pursuant to Exemption (d) as this office was informed that the 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 involves the Mayor’s policy determination…which is ongoing at this juncture.” On January 13, 2021, Attorney Hawkins replied by stating, “as the [Cannabis Advisory Committee] has assigned scores to each of the applicants as evidenced by the combined score rankings, it is clear that it has also completed the Individual Score Sheet and…its deliberative process is complete…Further, the Mayor’s policy determination is not within the Exemption…as the Exemption applies only to the Individual Scores Sheets while the [Cannabis Advisory Committee] conducts its deliberations.” On January 28, 2022, the City reiterated its December 8, 2021 response by stating, “after a comprehensive search…[the City] is [continuing to withhold] individual scoring sheets…pursuant to Exemption (d)…this office is informed that the individual scoring sheets have not been publicly disclosed…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 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 Hawkins 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).

Kimberly Scanlon, Esq. SPR22/0248 Page 4 February 9, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Leslie Hawkins