Colman Herman v. Department of Conservation and Recreation (SPR 20220624)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 28, 2022 SPR22/0624 Michael Tencellent, Esq. Records Access Officer Department of Conservation and Recreation 251 Causeway Street, Suite 600 Boston, MA 02114-2199 Dear Attorney Tencellent: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 21, 2022, Mr. Herman requested: “All copies of any and all communications related to Hull Artists for the period January 1, 2021 to the present. Communications include, but not limited to, emails, text messages, letters, memoranda, faxes, and/or notes. If any related communications were conducted via personal devices, they are public records and therefore must be provided.” Prior appeal The requested records were the subject of a prior appeal. See SPR22/0577 Determination of the Supervisor of Records (Supervisor) (March 16, 2022). Where the prior appeal was opened due to the Department not providing a response, I closed SPR22/0577 upon the Department’s March 14, 2022 response to Mr. Herman. In a March 14, 2022 response, the Department indicated that records were located and responsive records were attached to the response. The Department also stated, “[p]lease note that certain documents from this production have been withheld for the reason indicated in the following notations: Exemption (a) applies to records…” In addition, the Department withheld records under Exemption (d); specifically, “…the Department is continuing to develop its policy positions regarding management of land and buildings in Hull and these communications, while responsive to [Mr. Herman’s] request, are exempt because they are not completed factual studies but instead documents containing recommended approaches and courses of action and, in some cases, are still in draft form.” Finally, the Department asserted Exemptions (b) and (n) to withhold the meeting access codes/dial-ins numbers. 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

Michael Tencellent, Esq. SPR22/0624 Page 2 March 28, 2022 Current appeal As a result of the Department’s March 14th response, Mr. Herman petitioned the Supervisor, and the current appeal was opened. In his petition to the Supervisor, Mr. Herman appeals the Department’s Exemption (a) claim due to the Department not citing the applicable Massachusetts General Law that allows the Department to withhold the responsive records and/or information requested. In addition, Mr. Herman appeals the Department’s response to withhold certain of the records under Exemption (d), because the Department did not itemize the responsive records in its possession and custody that it is withholding under Exemption (d). As a result, this office opened the current appeal. 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) (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 burden of establishing the applicability of an exemption). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Michael Tencellent, Esq. SPR22/0624 Page 3 March 28, 2022 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entity. Exemption (d) In its March 14th response, the Department asserts, “…the Department is continuing to develop its policy positions regarding management of the land and buildings in Hull and these communications, while responsive to [Mr. Herman’s] request, are exempt because they are not completed factual studies but instead documents containing recommended approaches and courses of action and, in some cases, are still in draft form.” 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). In his March 14th petition, Mr. Herman reports that the Department did not identify the records or information that it is withholding under Exemption (d). Burden of specificity; segregable portions The Department denied Mr. Herman’s request under Exemption (a) without specifically claiming a statute to support the withholding of the responsive records under Exemption (a) of

Michael Tencellent, Esq. SPR22/0624 Page 4 March 28, 2022 the Public Records Law. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records are exempt from disclosure under Exemption (a). See 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, the Department claimed Exemption (a) and Exemption (d) to withhold records in their entirety pursuant to the Public Records Law. However, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a) and Exemption (d). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify what type of record(s) it has in its possession that the Department withheld. Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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. Mr. Herman may appeal the substantive nature of the response within 90 calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman