Charles Teague v. Cambridge, City of - Office of the City Clerk (SPR 20240172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0172 Seah Levy Records Access Officer Office of the City Solicitor City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Charles Teague 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 December 1, 2023, Mr. Teague requested the following: Complete sets of architectural-style drawings, “progress plots”, or “plan sets” (“PLANS”) from VENDORS delivered to the City of Cambridge (“CITY”) and/or STAFF from January 1, 2022 to the present day. In particular: [1.] The complete and full PLANS with 50 sheets, more or less, of so-called and so-titled as “LANDSCAPE PLANS” for the “Project” titled as “ALEWIFE LINEAR PARK RECONSTRUCTION PROJECT”. . . . [2.] All so-called “Progress Plots” (PP) including all drafts of said PP titled as “Project ALEWIFE LINEAR PARK RECONSTRUCTION PROJECT”. . . . [3.] All land surveys (“SURVEYS”) by [a specified vendor] titled as (more or less) “ADDRESS: LINEAR PARK, CAMBRIDGE, MASS.” and “DRAWING NAME: EXISTING CONDITIONS PLAN” including all drafts of said SURVEYS. [4.] All SURVEYS annotated and otherwise “marked-up” by STAFF delivered from the CITY to VENDORS. Previous Appeal This request was the subject of a previous appeal. See SPR23/3061 Determination of the Supervisor of Records (January 4, 2024). In my January 4th determination, I ordered the City to provide Mr. Teague with a supplemental response. Subsequently, the City responded on January 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 SPR24/0172 Page 2 February 2, 2024 19, 2024, citing Exemption (d) of the Public Records Law for withholding responsive records. G. L. c. 4, § 7(26)(d). Unsatisfied with the City’s response, Mr. Teague further appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response to this office and Mr. Teague on January 31, 2024. 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. 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. Current Appeal In his appeal petition, Mr. Teague contends the following: 1.) The city previously released “25%” plans in March 2023 (city case number P230500) so the city’s completeness argument has no basis given the city’s own precedent. 2.) Said plans were architectural drawings (“Landscape Plans”) and, as such, were purely factual. 3.) On 14 November 2023, city staff testified to the City Council that a. plans where “about 75%” complete b. updated plans were due by about 21 November 2023 4.) The city’s specious arguments directly contradict the earlier determination... The City’s Responses In its previous December 18, 2023 response, the City provided records responsive to Part 3 of the request, and explained that it does not possess records responsive to Part 4. In its January 19, 2024 and January 31, 2024 responses, the City explained that it does not possess records responsive to Part 2 of the request, and cites Exemption (d) of the Public Records Law for

Seah Levy SPR24/0172 Page 3 February 2, 2024 withholding “Landscape Plans” responsive to Part 1 of the request. See G. L. c. 4, § 7(26)(d). 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 January 31st response, with regard to Part 1 of the request, the City argues the following under Exemption (d): The Landscape Plans are still in draft form and are not reasonably complete. As such, the plans will likely change, will be subject to further internal deliberation, and will be subject to negotiation with a third party. The City anticipates that the final landscaping plan may significantly change from the current draft plans. Disclosure of these preliminary draft plans falls squarely within the ambit of Exemption (d) given the current ongoing deliberative processes regarding their development. . . . [T]he landscaping plans are not reasonably complete; ... the draft Landscaping Plans are only estimated to be 75% complete by the City’s consultant. As such, the Landscaping Plans are still subject to internal deliberation and external negotiation. Furthermore, ... the Landscaping Plans could change significantly in light of the City’s ongoing deliberations and negotiations, and thus the consultant’s 75% estimation could be a significant overstatement. . . . Further, the City has now entered the deliberative stage where its policy position with respect to the affected third party is subject to negotiation, and the number of trees the City would be permitted to plant may be curtailed by early disclosure. While the initial [previously disclosed] 25% plans showed just a broad plan of what the City would like, the later draft plans involve more specific plans which

Seah Levy SPR24/0172 Page 4 February 2, 2024 necessarily will involve internal discussions related to specific trees and the policy positions being developed with respect to potential negotiation with the third party in question. . . . Public disclosure may focus the third party upon the City’s interests and preservation goals, making negotiation more difficult. Further, the decision of which trees on the Landscape Plans to keep, and which trees on the Landscape Plans to concede, are still being discussed internally, and are part of the City’s internal deliberative process. The incomplete Landscaping Plans therefore fall entirely within the protection of Exemption (d). Where the City has explained how the responsive landscape plans are part of an ongoing deliberative process, and how their release would taint that process, I find the City has met its burden to withhold the responsive records at this time. Please be advised, any change in the status of the ongoing deliberative process may affect the application of Exemption (d). See G. L. c. 4, § 7(26)(d). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Teague is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Charles Teague