John Hawkinson v. Cambridge, City of - Law Department (SPR 20231497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 13, 2023 SPR23/1497 Seah Levy Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 9, 2023, Mr. Hawkinson requested a draft policy for police body camera usage. On May 23, 2023, the City responded stating that they are withholding responsive records pursuant to Exemption (d) of the Public Records Law. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1094 Determination of the Supervisor of Records (May 31, 2023). In my May 31st determination, I found that the City had not met its burden to withhold the draft policy, in its entirety, under Exemption (d) of the Public Records Law. As such, the City was ordered to provide a further response. On June 15, 2023, the City provided a response detailing the basis for withholding the requested records pursuant to Exemption (d). Unsatisfied with the City’s response, Mr. Hawkinson petitioned this office and this appeal, SPR23/1497, 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). 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 SPR23/1497 Page 2 July 13, 2023 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. The City’s June 15th response In its June 15, 2023 response, the City cites 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. 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 City stated the following: The Requestor is seeking a Cambridge Police Department policy that is still in draft form and is the subject of ongoing internal policy deliberations within the Cambridge Police Department. The draft policy is a product of the Cambridge Police Department, not a third party and has only been shared with select groups involved in the internal policy deliberations (specifically, the relevant unions with whom we have a legal obligation to bargain the impacts of the policy before

Seah Levy SPR23/1497 Page 3 July 13, 2023 implementing it and the Police Review and Advisory Board which advises the Cambridge Police Department on policy matters). Finally, the City notes that the draft policy is a policy document, not a factual report, and the disclosure at this time could taint the deliberative process. The City further explained that: Exemption (d) is intended to avoid the release of materials that could taint the deliberative process if prematurely released. Exemption (d) applies to recommendations on policy matters within an ongoing deliberative process. Given the ongoing deliberative process and the possibility that a release of these records could prejudice the deliberative process, the City’s withholding of the requested documents is proper pursuant to Exemption (d). In camera inspection In order to facilitate a determination as to the applicability of the City’s Exemption (d) claim to withhold the requested records, the City must provide this office with an un-redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Seah Levy SPR23/1497 Page 4 July 13, 2023 Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: John Hawkinson