Alexandra Bowers v. Cambridge, City of - Office of the City Solicitor (SPR 20240659)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2024 SPR24/0659 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Alexandra Bowers 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 January 12, 2024, Ms. Bowers requested, “... copies of the School Improvement Plan Budget requests and reports for this academic year, created by the Cambridge Public Schools administration, for all district schools beginning on July 1, 2023.” The City responded on January 25, 2024. Unsatisfied with the response, Ms. Bowers petitioned this office and this appeal, SPR24/0659, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 SPR24/0659 Page 2 March 14, 2024 The City’s January 25th Response In its January 25, 2024 response, the City denied the request pursuant to Exemption (d) of the Public Records Law. 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 response, the City stated, “[t]he 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.” Upon review, the City has not explained how the disclosure of the records would taint the ongoing deliberative process. As a result, the City has not sufficiently explained how the records are exempt from disclosure, in their entirety, pursuant to Exemption (d). The City 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). Hence, the City must clarify whether there is factual information that can be segregated from the responsive records. See 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). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify these matters. Further, it is unclear what types of records the City possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the City withheld responsive records

Seah Levy SPR24/0659 Page 3 March 14, 2024 without identifying each of the records. Therefore, the City must identify what type of record(s) it has in its possession that the City withheld under Exemption (d). As a result, I find that the City did not satisfy its burden in responding to this records request. Conclusion Accordingly, the City is ordered to provide Ms. Bowers with a response to her request in a manner consistent with this order, the Public Records Law and its Regulations within 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. Ms. Bowers may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alexandra Bowers