Joshua Carrier v. Department of Correction (SPR 20232793)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2023 SPR23/2793 Michelle Brogna Records Clerk Department of Correction MCI Shirley 104 Harvard Road Shirley, MA 01464 Dear Ms. Brogna: I have received the petition of Joshua Carrier appealing the response of the Department of Correction (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 13, 2023, Mr. Carrier requested the following records: [1.] Meeting minutes for the year of 2023 for the “Religious Services Committee” and all documents presented at these meetings. [2.] Meeting minutes for the year of 2023 for the “Musical/Musical Committee” and all documents presented at such. [3.] Application that has been completed and signed off for the program “City Missions” in Old Colony Correction Center. [4.] Library/Librarian meeting minutes for the year 2023 and all documents that were presented at these meetings. The Department responded on October 25, 2023, and provided responsive records for Items 1 and 3 without redactions. The Department also provided responsive records for Items 2 and 4 with redactions. The Department stated that it redacted records responsive to Items 2 and 4 under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). The Department also stated that regarding Item 4 additional redactions were made because they contained personal data. Unsatisfied with the Department’s response regarding Item 2, Mr. Carrier petitioned this office and this appeal, SPR23/2793, was opened as a result. 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

Michelle Brogna SPR23/2793 Page 2 December 4, 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 town 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. 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 Department’s October 25th response In its October 25, 2023 response to Item 2, the Department indicated that it redacted records pursuant to Exemption (d) of the Public Records Law. Current Appeal In his current appeal, Mr. Carrier claims that the Department did not meet its burden to redact the responsive records for Item 2. 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

Michelle Brogna SPR23/2793 Page 3 December 4, 2023 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 Department stated the following: Enclosed please find the records responsive to your request. Please be advised that this record has been redacted pursuant to G. L. c. 4, § 7(26)(d) . . . This exemption “protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete” which applies here. Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Based on the Department’s response, I find it has not met its burden of specificity to redact the responsive records under Exemption (d). It is unclear from the Department’s response what information has been redacted from the responsive records. Also, I find the Department has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). In addition, the Department 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”). Neither has the Department provided supporting information to establish that disclosure of the redacted portions will taint the ongoing deliberative process, if any. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Carrier 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 the response to this office at pre@sec.state.ma.us.

Michelle Brogna SPR23/2793 Page 4 December 4, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joshua Carrier Kate Silvia Jenna Williams