Elizabeth Chong v. South Hadley, Town of - Town Clerk (SPR 20222326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2022 SPR22/2326 Sarah B. Gmeiner Town Clerk Town of South Hadley 116 Main Street, Room 108 South Hadley, MA 01075 Dear Ms. Gmeiner: I have received the petition of Elizabeth Chong appealing the response of the Town of South Hadley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 28, 2022, Ms. Chong requested “email correspondence from [three identified individuals] regarding [an identified individual] from 9/01/2022 to 9/28/2022.” On October 13, 2022, the Town responded. Unsatisfied with the Town’s response, Ms. Chong petitioned this office and this appeal, SPR22/2326, 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 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. 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

Sarah B. Gmeiner SPR22/2326 Page 2 October 27, 2022 The Town’s October 13th Response In its October 13, 2022 response, the Town asserts that it “is withholding the responsive records, as they are exempt from disclosure under [Exemption (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). Under Exemption (d), the Town argues that it “is currently investigating and attempting to resolve an incident involving [an identified individual] and disclosing the records responsive to your request would taint said processes.” The Town has not met its burden to withhold the responsive records pursuant to Exemption (d). Although the Town states it may withhold the responsive records under Exemption (d), the Town has not sufficiently explained its reasoning. It is uncertain how this information constitutes inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency as required by Exemption (d). The Town must clarify this. Further, any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Sarah B. Gmeiner SPR22/2326 Page 3 October 27, 2022 Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, based on the Town’s October 13th response, I find the Town has not met its burden of specificity in responding to the request, and in denying access to the records under Exemption (d). Conclusion Accordingly, the Town is ordered to provide Ms. Chong 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, Manza Arthur Supervisor of Records cc: Elizabeth Chong