Colman Herman v. Division of Capital Asset Management and Maintenance (SPR 20233130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2024 SPR23/3130 Christopher Guerin, Esq. Records Access Officer Division of Capital Asset Management & Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Colman Herman appealing the response of the Division of Capital Asset Management & Maintenance (Division/DCAMM) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 18, 2023, Mr. Herman requested “copies of any and all communications related to UMass Dartmouth recently vacating a downtown New Bedford building that once was a department store, in the files of DCAMM.” Previous Appeals This request was the subject of previous appeals. See SPR23/2397 Determination of the Supervisor of Records (October 24, 2023) and SPR23/2873 Determination of the Supervisor of Records (December 13, 2023). In my December 13th determination, I ordered the Division to clarify its claims under Exemptions (a) and (d) of the Public Records Law, and found that the Division had met its burden to withhold items listed in its privilege log pursuant to the attorney- client privilege. See G. L. c. 4, § 7(26)(a), (d). Subsequently, the Division responded on December 28, 2023, reiterating its claims under Exemption (a) and (d) for redacting and withholding responsive records. Subsequent to the opening of this appeal, the Division provided a supplemental response to Mr. Herman and this office on January 11, 2024. In multiple emails to this office, Mr. Herman further objects to the Division’s supplemental response. 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, 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

Christopher Guerin, Esq. SPR23/3130 Page 2 January 16, 2024 § 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 Division’s December 28th Response In its December 28, 2023 response, the Division cites Exemption (a), G. L. c. 12A, § 13, and Exemption (d) of the Public Records Law for redacting and withholding responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Christopher Guerin, Esq. SPR23/3130 Page 3 January 16, 2024 G. L. c. 12A, § 13 In its December 28th response, the Division cites G. L. c. 12A, § 13, which provides in pertinent part as follows: All records of the office of inspector general shall be confidential unless, it is necessary for the inspector general to make such records public in the performance of his duties, and shall not be public records as defined in section seven of chapter four. Violation of the provisions of section nine and section ten relative to the secrecy of proceedings by the inspector general or any member of the staff, or by any member of the inspector general council, shall be punished by imprisonment in a jail or house of correction for not more than six months or by a fine of not more than one thousand dollars. G. L. c. 12A, § 13. The Division also cites 945 C.M.R. 1.04(2)(b), which provides in pertinent part as follows: Complaints, information or referrals received, including the identity of the complainant or informant or referral source, are records of the Office of the Inspector General. Such records are not public records within the meaning of M.G.L. c. 4, § 7 clause 26 and shall be kept confidential unless disclosure is deemed necessary in the performance of the duties of the Office. 945 C.M.R. 1.04(2)(b). In its December 28th response, under the statute and regulation cited above, the Division argues the following: In the instant matter, the materials redacted are emails containing information requested by the Office of the Inspector General (“OIG”), pursuant to an OIG investigation authorized by Section 79 of Chapter 28 of the Acts of 2023. . . . In the matter that is the subject of this appeal, the OIG requested information from DCAMM pursuant to an investigation under Section 79 of Chapter 28 of the Acts of 2023. DCAMM in turn, created a record solely for the purpose of providing information requested by the OIG. Based on 945 CMR 1.04(b)(2), the OIG received information, by email, from DCAMM causing that information to become a record of the OIG. The redacted portions of the attached records contain the request from the OIG and DCAMM’s response sought. Therefore, the redacted information in the possession of DCAMM constitutes “information received” by the OIG, and DCAMM may redact such portions of those records.

Christopher Guerin, Esq. SPR23/3130 Page 4 January 16, 2024 See SPR18/1380. This furthers the statutory and regulatory scheme under G.L. c. 12A, §13 which establishes a framework of confidentiality. In its January 11, 2024 supplemental response, the Division further explains that it “provided [to Mr. Herman] the previously withheld records with only the information requested by the OIG and the information provided by DCAMM in response to that request redacted.” In this case, where the Division has explained that the redacted portions of the emails are the type of record contemplated under G. L. c. 12A, § 13 and 945 C.M.R. 1.04(2)(b), I find that the Division has met its burden in redacting the emails described above. 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). In its December 28th response, under Exemption (d), the Division argues the following: In the instant matter, certain records were redacted or withheld from the Response, as policy discussions by and among DCAMM and the University of Massachusetts Dartmouth (“UMD”) regarding the treatment of the subject property are ongoing and therefore exempt from disclosure pursuant to Exemption (d). Premature disclosure of the requested communications could taint the deliberative process if disclosed, as the subject of the Star Store building and UMD’s vacating the Star Store Building is highly sensitive and under intense scrutiny and the premature release of policy discussions could cause advocates to improperly influence the outcome of those policy decisions in a manner detrimental to the Commonwealth. The materials withheld include legal and policy discussions both inter-agency and intra-agency.

Christopher Guerin, Esq. SPR23/3130 Page 5 January 16, 2024 Although portions of the responsive records may be redacted under Exemption (d), where the Division has stated that “certain records were redacted or withheld,” I find it is unclear what specific records the Division is withholding in their entirety under Exemption (d). Additionally, it is not clear whether the withheld records may contain any factual information that can be segregated and released. The Division must clarify this. Please note that a change in the status of the deliberation may impact the applicability of Exemption (d). See M.G.L. c. 4, § 7(26)(d). Conclusion Accordingly, the Division is ordered to provide Mr. Herman 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman Katherine Renzoni, Esq.