Colman Herman v. Office of the State Auditor (SPR 20230711)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2023 SPR23/0711 Colon Cagle, Esq. Assistant General Counsel Office of the State Auditor One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Cagle: I have received the petition of Colman Herman appealing the response of the Office of the State Auditor (Office/OSA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2023, Mr. Herman requested “any and all communications related to Auditor Diana DiZoglio’s efforts to monitor the legislature. This is for the period March 1, 2023 to the present.” The Office responded on April 10, 2023, citing Exemption (d) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(d). Unsatisfied with the Office’s response, Mr. Herman 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 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 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

Colon Cagle, Esq. SPR23/0711 Page 2 April 25, 2023 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. The Office’s April 10th Response In its April 10, 2023 response, the Office cites Exemption (d) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26). 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). [T]he OSA is currently conducting an audit of the Massachusetts General Court. In accordance with the Deliberative Process Exemption – Exemption (d), the OSA will be happy to produce records responsive to all public records requests after the audit is completed. The release of audit records and audit work papers before the completion of OSA audits, however, taints the deliberative process and jeopardizes the integrity of audits. Additionally, the OSA makes recommendations regarding policy matters within audited entities, and the disclosure of information during the course of audits with outside parties could lead to independence issues – specifically, bias and undue influence threats, under the Generally Accepted Government Auditing Standards (GAGAS) by which the OSA conducts its audits. Once the OSA has completed this audit, the OSA will post the final audit report on its website and all related records, including audit work papers, will be available for disclosure under Massachusetts public records law.

Colon Cagle, Esq. SPR23/0711 Page 3 April 25, 2023 Based on the Office’s response, it is unclear which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemption (d). See G. L. c. 66, § 10(b)(iv) (a 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”). Further, although portions of the records may involve policy deliberations, 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, § 10(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). The Office must explain whether segregable portions of the records can be provided. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman