Samantha M. Vasques v. Methuen, City of (SPR 20240677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2024 SPR24/0677 Anne Drouin City Clerk/Records Access Officer City of Methuen 41 Pleasant Street Searles Building, Room 112 Methuen, MA 01844 Dear Ms. Drouin: I have received the petition of Samantha M. Vasques, Esq., of Mead, Talerman & Costa, LLC, appealing the response of the City of Methuen (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 13, 2024, Attorney Vasques requested: [1] All records concerning any person employed by or acting on behalf of or acting with permission of the City of Methuen, performing work at or otherwise deploying to any location at or around . . . Woodland Street, Methuen, MA 01844, from December 26, 2011 to the present; [2] All records concerning the blocking or flushing of any sewer line at or near Hazel Street, Woodland Street, and/or Haverhill Street, by any person employed by or acting on behalf of the City of Methuen, from January 2, 2009 to the present; [3] All records concerning any reports or documents or communications generated concerning any work performed at or any response to 76 Woodland Street, Methuen, MA 01844, from December 26, 2011 to the present, including but not limited to any incident report generated by Water Department or Sewer Department personnel on or about December 26, 2021; [4] All records concerning 76 Woodland Street, Methuen, MA 01844, from December 26, 2011 to the present; and, [5] All records concerning any communications to, from, or concerning the Perrault Family Limited Partnership, [identified individuals], from December 26, 2021 to the present. 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

Anne Drouin SPR24/0677 Page 2 March 19, 2024 On February 13, 2024, the City provided an acknowledgement of the request, stating, “[w]e have received your public [r]ecords request … This record is being assigned to appropriate department. The department reviewer will review the request and create an effort estimate to create the response … for Methuen, if the effort estimate is more than 2 hours, we will create a proposed cost estimate and will email such estimate to your attention. Once you approve the amount and send the payment we will start working on your request. In case the estimate is less than 2 hours, we will proceed to work on the response and will send you the response once the work is completed. Please note that state mandate allows us to complete and send the response within 10 business days. We will do our due diligence towards this effort. However, the due date may be extended…” Unsatisfied with the City’s February 13th response to the request, on March 5, 2024, Attorney Vasques petitioned this office, and this appeal, SPR24/0677, was opened. 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 her March 5th petition, Attorney Vasques states, “…Ten business days have now passed. Since that initial communication from Mr. Bower, there has been no response from the City, nor has the City sought clarification on the request, provided [a fee] estimate … Under the provisions of [G. L. 66, § 10], our office is entitled to a timely response to its public records request to the City…” The City’s March 8, 2024 Response Subsequent to the opening of this appeal, I learned the City provided Attorney Vasques

Anne Drouin SPR24/0677 Page 3 March 19, 2024 with a response on March 8, 2024. In its March 8, 2024, the City asserts: [t]he documents sought in your request pertain to a litigation process your firm previously initiated via a purported Presentment Letter dated December 11, 2023 and attached as Exhibit A. See MGL c. 258, § 4. The City is still actively investigating this matter, consistent with the time frames expressly authorized under the subject statute. In light of your firm’s initiation of a litigation process, and after a careful and considered review of the results of your requested search, the City declines at this time to produce any records based upon the litigation exception to the Public Records [Law] contained in G. L. c. 4, § 7(26)(d), the Deliberative Process Exemption, and as further supported by 950 [C.M.R.] 32.08(2)(b)(1). Relatedly, since the City continues to investigate this matter, this correspondence does not constitute a denial under MGL c. 258, § 4. 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). While this determination of this appeal was pending, on March 15th, Attorney Vasques objected to the City’s March 8th response. Attorney Vasques asserts, “…[r]ather than provide the requested records, the City has declined to produce any records at all, citing the litigation process initiated via presentment letter in connection with our office’s representation of [Perrault Family Limited Partnership]. The City claims to be actively investigating the matter, and also cites the deliberative process and so-called litigation exemptions to the Public Records Law … In addition, the City’s reliance on [Exemption (d)] provides … for inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency. The City has not articulated any policy positions that were being developed prior to its receipt of the presentment letter, nor is there any plausible scenario where routinely created records in

Anne Drouin SPR24/0677 Page 4 March 19, 2024 existence before the receipt of a presentment letter would involve or reflect any deliberative process…” Burden of Specificity in Claiming Exemptions Based on the City’s March 8th response and Attorney Vasques’ objections to the City’s March 8th response, I find the City’s response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the City has not met its burden to show how the responsive records fall within Exemption (d) and pertain to policy positions being deliberated and/or pertain to an active litigation process. As a result, I find the City did not satisfy its burden in responding to this records request. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, 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). Consequently, the City must identify the records in its possession that it withheld under Exemption (d). Conclusion Accordingly, the City is ordered to provide Attorney Vasques with a response to her 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. Attorney Vasques may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Samantha M. Vasques, Esq.