Jim Pillsbury v. Framingham, City of - Police Department (SPR 20230834)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2023 SPR23/0834 Kristin Sullivan Records Manager Framingham Police Department 1 William H. Welch Way Framingham, MA 01702 Dear Ms. Sullivan: I have received the petition of James Pillsbury appealing the response of the Framingham Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 16, 2022, Mr. Pillsbury requested, “... [a] copy of the body camera purchase proposal given to the mayor in the past 90 days from [named person] or his designee.” Prior Appeal This request was the subject of a previous appeal. See SPR23/0620 Determination of the Supervisor of Records (April 14, 2023). The Department responded on April 26, 2023. Unsatisfied with the response, Mr. Pillsbury petitioned this office and this appeal, SPR23/0834, 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

Kristin Sullivan SPR23/0834 Page 2 May 10, 2023 The Department’s April 26th Response In its April 26, 2023 response, the Department stated that it “... stands by its original determination to Mr. Pillsbury that was made on March 30[,] 2023...” In the March 30th response, the Department cited Exemption (d) to withhold the requested records. 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). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its response, the Department advised, “... under Mass. R. Civ. P. 26 (b) (3) [the body camera purchase proposal request] ... falls outside the definition of ‘public records’, where it is not a reasonably completed study or report it is not reasonably completed.” The Department further advised, “... this is something that is still in the process of being drafted and worked on and nothing formal has been completed ... [as] we are in the developmental stages. The Department further asserted, “[w]here work product is exempted from disclosure under the public records act, it is protected from disclosure to the extent provided by Mass. R. Civ. P. 26.”

Kristin Sullivan SPR23/0834 Page 3 May 10, 2023 Upon review, the Department has not explained how the disclosure of the requested records would taint the deliberative process nor how the responsive records are inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency. As a result, the Department has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). The Department is reminded that “reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Further, it is unclear how the requested records represent attorney work product under Exemption (d) of the Public Records Law or how the requested records were prepared in anticipation of litigation. The Department must clarify. As a result, I find that the Department did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Mr. Pillsbury with a response to his request in a manner consistent with 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. Pillsbury may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: James Pillsbury