Ian Hunt-Isaak v. Department of Conservation and Recreation (SPR 20240508)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2024 SPR24/0508 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Ian Hunt-Isaak appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2023, Mr. Hunt-Isaak requested, “[a]ll documents (including emails, texts, and any other communications) concerning the scheduling of pedestrian and bicycle access to Riverbend Park in Cambridge sent on or after August 8, 2023, including, but not limited to, documents and communications concerning whether or not to close Memorial Driver/Riverbend Park to vehicular traffic on Saturdays.” Previous Appeal The requested records were the subject of a previous appeal. See SPR24/0141 Determination of the Supervisor of Records (January 30, 2024). In my January 30, 2024 determination, I ordered the Department to provide an estimated date of when it expects to complete the search for responsive records and provide responsive records. The Department provided a response on February 13, 2024. Unsatisfied with the Department’s response, Mr. Hunt-Isaak petitioned this office and this appeal, SPR24/0508, 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). 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

Michael Tencellent SPR24/0508 Page 2 March 1, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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 February 13th response In its February 13, 2024 response, the Department provided a series of documents and stated that other records were withheld or redacted pursuant to Exemptions (b), (c), and (d) of the Public Records Law and attorney-client privilege. Please be advised that this determination is limited to the cited issues in Mr. Hunt-Isaak’s appeal. The applicability of attorney-client privilege to the records was not appealed. Current Appeal In his appeal, Mr. Hunt-Isaak stated, “DCR produced documents, but also applied what I believe to be an overly broad interpretation of exemption d.” Mr. Hunt-Isaak also stated in reference to a document, “…it is unclear if they are claiming exemption b or d. If b it seems excessive, and if d I am again worried that they are redacting far more than is allowed by exemption d.” Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an

Michael Tencellent SPR24/0508 Page 3 March 1, 2024 exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk of circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. In its response, the Department stated, “[p]lease note access codes…have been redacted pursuant to M.G.L. c.4, § 7(26)(b)[.]” The Department also provided an email with the entirety of the body text on it redacted. In separate text over the redactions, the Department stated, “Exemption (b) internal personnel rules and practices.” The Department states that it redacted access codes and also redacted another document due to “internal personnel rules and practices”. However, the Department did not provide supporting information to demonstrate how disclosure of this information is related solely to internal personnel rules and practices of the government unit nor how disclosure would hinder the proper performance of the Department’s necessary government function.” The Department must clarify this matter. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391

Michael Tencellent SPR24/0508 Page 4 March 1, 2024 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’'t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its February 13, 2024 response, the Department stated, “…private email addresses have been redacted pursuant to…M.G.L. c.4, § 7(26)(c).” Upon review, I find that the Department has met its burden to redact private email addresses under Exemption (c). 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

Michael Tencellent SPR24/0508 Page 5 March 1, 2024 opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection 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 response, the Department stated, “certain documents are being either withheld in their entirety or redacted from disclosure under exemption (d) of the Public Records Act, which applies to interagency or intra-agency memoranda or letters relating to policy positions being developed by the agency.” The Department must identify with specificity the records, or portions of records, in its possession that were withheld or redacted pursuant to Exemption (d). The Department has also not explained how the disclosure of the documents would taint the deliberative process. It is unclear what deliberative process the responsive records relate to, nor how such a process remains ongoing. As a result, the Department has not sufficiently explained how the records are exempt from disclosure in their entirety or redacted pursuant to Exemption (d). The Department 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 Department is ordered to provide Mr. Hunt-Isaak 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. Hunt-Isaak may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ian Hunt-Isaak