Matthew Michel v. Sherborn, Town of (SPR 20220268)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 10, 2022 SPR22/0268 Jacklyn Morris Town Clerk Town of Sherborn 19 Washington Street Sherborn, MA 01770 Dear Ms. Morris: I have received the petition of Matthew Michel appealing the response of the Town of Sherborn (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2022, Mr. Michel requested, “all documents pertaining to AECOM’s study regarding the hydrological analysis of storm water and other impacts affecting my property as well as others in the surrounding area… Also, any and all analysis/reports pertaining to the identification and categorization of the origin/cause of the issue(s) as well as any measures identified or discussed that may be undertaken to remedy the impacts of the excess water.” The Town responded on January 18, 2022. Unsatisfied with the Town’s response, Mr. Michel petitioned this office and this appeal, SPR22/0268, 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. 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

Jacklyn Morris SPR22/0268 Page 2 February 10, 2022 The Town’s January 18th Response In the Town’s January 18, 2022 response, it stated that it was withholding 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. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual --------------------------- matters used in the development of government policy are subject to disclosure). On January 18, 2022, the Town stated, “Exemption (d) applies here because the requested record pertains to ongoing policy positions under consideration by the Sherborn Conservation Commission and Select Board and is not a reasonably completed factual study or report.” On February 4, 2022, Mr. Michel stated, “I sought an explanation from [the Town’s counsel] which [was] not provided…except…that the [T]own…had some questions to the engineering firm which the firm would respond to. [Town counsel] stated that because of this, the study was still open and was not public record.” Based on the Town’s response, I find it has not met its burden of specificity to withhold the records in their entirety pursuant to Exemption (d). The Town is advised that any portions of the records that contain any factual information which can be segregated from the responsive records are subject to mandatory disclosure as Exemption (d) does not apply to such information. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It is unclear whether such segregable portions exist in the responsive records. The Town must clarify this.

Jacklyn Morris SPR22/0268 Page 3 February 10, 2022 Additionally, I find that the Town has not established how the records are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Town must further clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Michel with a response to the request, provided 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: Matthew Michel