Charles Teague v. Cambridge, City of - Office of the City Solicitor (SPR 20231846)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2023 SPR23/1846 Seah Levy Records Access Officer Law Department City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Charles Teague appealing the responses 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 April 13, 2023, Mr. Teague made a request for “…copies of the plans you presented at CPP last night.” The City provided responses on April 26, 2023 and July 28, 2023. Unsatisfied with the responses, Mr. Teague petitioned this office and this appeal, SPR23/1846, 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

Seah Levy SPR23/1846 Page 2 August 23, 2023 The City’s April 26th and July 28th responses In its April 26, 2023 response, the City provided Mr. Teague with six pages of a fifty- page “Landscape Plan.” In its July 28, 2023 response, the City states it is withholding certain responsive records pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). In its July 28, 2023 response, the City cited Exemption (d) and stated that, “[w]ith regards to your request for the…document ‘Landscape Plans’ document referenced from the April 26, 2023 response, the City is denying your request for these records as they are exempt from production pursuant to Exemption G. L. c. 4 § 7(26)(d) of the Public Records law which protects records which are the subject of ongoing internal policy deliberations within an agency.” Current appeal In his appeal, Mr. Teague states the following: By letter dated 28 July 2023, the City of Cambridge is again withholding documents which are architectural drawings (‘Landscape Plans’) which, being drawings, are ‘factual’. From the city letter: ‘the City is denying your request for these records as they are exempt from production pursuant to Exemption G. L. c. 4 § 7(26)(d) of the Public Records Law which protects records which are the subject of ongoing internal policy deliberations within an agency.”…. The city admitted that their denial was a continuation of the city’s withholding of documents first requested on 13 April 2023 (particularly extraordinary as parts of those plans were presented in a public meeting). 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,

Seah Levy SPR23/1846 Page 3 August 23, 2023 § 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). Based on the City’s response, I find the City has not met its burden to withhold the requested records in their entirety pursuant to Exemption (d). I find that the City’s responses do not explain how the requested records being withheld are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). Further, the City has not fully explained how their disclosure would taint the deliberative process. In particular, the City has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). As a result, the City has not sufficiently explained how the records are exempt from disclosure in their entirety pursuant to Exemption (d). Further, the City is advised that any portions of the records that contain any factual information which can be segregated from the responsive record are subject to mandatory disclosure as Exemption (d) does not apply to such information. See G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It is unclear whether such segregable portions exist in the responsive records. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Teague 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. Mr. Teague may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Charles Teague