John Hawkinson v. Cambridge, City of - Office of the City Clerk (SPR 20221556)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2022 SPR22/1556 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Seah Levy: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2022, Mr. Hawkinson requested “all records relating to the June 14, 2022 ... meeting of the Planning Board.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1523 Determination of the Supervisor of Records (July 6, 2022). In my July 6th determination, I closed SPR22/1523 in light of the City’s July 5, 2022 response. Unsatisfied with the City’s response, Mr. Hawkinson 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 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 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

Seah Levy SPR22/1556 Page 2 July 21, 2022 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, Mr. Hawkinson contends that he is “dubious as to whether the City may claim exemption (d) over any portion of the staff notes here, when they are not draft position papers, memoranda, or letters, but rather contemporaneous recordings of staff reactions to positions espoused by the public body.” I note that Mr. Hawkinson reiterated this and other objections to the City’s response in multiple correspondences following the opening of this appeal. The City’s July 5th and July 18th Responses In its July 5, 2022 and July 18, 2022 responses, the City provides numerous responsive emails, and cites Exemption (d) of the Public Records Law for withholding “staff notes from the meeting.” 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). In its July 5th response, the City states that it is withholding “staff notes from the meeting,” and in the July 18th response, clarifies that “the only document that was withheld” was the staff’s “ongoing document (‘CDD Hybrid Meeting Plan’).” Under Exemption (d), the City

Seah Levy SPR22/1556 Page 3 July 21, 2022 argues the following: The CDD [Community Development Department] Hybrid Meeting Plan serves as a clearinghouse document and point of reference for CDD staff as multiple employees had a role in brainstorming, planning, and the logistics of developing hybrid meeting plans and policies for the Board. Hybrid meeting plans and policies have yet to be set by CDD staff as the Board does not meet until July 26, 2022, and now because the Governor extended the current legislation, making hybrid procedures not needed until after March, 2023. While the microphones in Sullivan Chamber were on - to simulate a hybrid environment, ensure participants could hear and be socially distant from each other and because fans run in the Chamber and drown out the noise - no recordings or minutes of the training exist. Open Meeting Law (OML) In its July 18th response, the City notes that “on July 14th, Requestor filed an OML Complaint against the City on this matter.” Mr. Hawkinson, however, contends that there is “no adjudicatory overlap” between this appeal and his Open Meeting Law complaint. Nonetheless, the City’s responses, along with Mr. Hawkinson’s appeal petition and subsequent correspondence, raise several issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address the issues in this determination at this time. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the AGO for a determination on these matters. Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: John Hawkinson