Jason Graziadei v. Nantucket, Town of - Town Administration (SPR 20231801)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2023 SPR23/1801 Maureen Coleman Records Access Officer Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Coleman: I have received the petition of Jason Graziadei appealing the response of the Town of Nantucket (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 17, 2023, Mr. Graziadei requested “the results of the community survey the town conducted related to the police chief search. I don’t need all of the response. I want to see the tabulation of the results.” On July 28, 2023, the Town responded. Unsatisfied with the Town’s response, Mr. Graziadei petitioned this office and this appeal, SPR23/1801, was opened as a result. While this appeal was pending, the Town submitted a supplemental response dated August 9, 2023. 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

Maureen Coleman SPR23/1801 Page 2 August 16, 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 Town’s July 28th and August 9th Responses In its July 28, 2023 response, the Town asserts “[the] requested survey is not public information as the data is being used to inform the recruitment process, which is still ongoing. An executive summary is available here: [URL provided.]” In its supplemental response dated August 9, 2023, the Town argues: By way of background, in this public records request, tabulated survey results relative to the Police Chief search process, which remains active and ongoing at this time, are being requested. The Town is withholding the detailed survey results pursuant to Exemption (d) of the Public Records Law, G.L. c. 4, §7(26)(d). This exemption is intended to avoid release of materials, which could taint the deliberative process if prematurely disclosed. This exemption applies to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). In considering Exemption (d), the Supreme Judicial Court in General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) stated, “ [t]he purpose of Exemption (d) is to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision.” Here, the Town is still reviewing applicants for the position of Chief of Police, which search process remains ongoing and the survey results are relevant to such process. It is the Town’s position that disclosure of the detailed survey results would be premature and public dissemination of that information may influence the Town’s ongoing deliberative process with respect to such Police Chief search process. 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).

Maureen Coleman SPR23/1801 Page 3 August 16, 2023 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). I find that the Town’s response does not explain how the results of the community survey are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). Further, the Town has not fully explained how their disclosure would taint the deliberative process. As a result, the Town has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). The Town 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). Conclusion Accordingly, the Town is ordered to provide Mr. Graziadei 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: Jason Graziadei