Laura Crimaldi v. Everett, City of - Office of the City Clerk (SPR 20241589)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2024 SPR24/1589 Matt Lattanzi Records Access Officer Planning Department City of Everett 484 Broadway Everett, MA 02149 Dear Mr. Lattanzi: I have received the petition of Laura Crimaldi, on behalf of Matt Stout, both of the Boston Globe, appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2024, Mr. Stout requested: [1] Copies of any/all written communication sent or received by [an identified individual] ... or his staff — including, but not limited, to emails, memos, or letters — from Jan. 1, 2022 to present that includes any of these phrases: Alford Street; Kraft; soccer stadium; Constellation; or Designated Port Area or DPA. [2] Copies of any/all text messages sent to or received by [an identified individual] ...from Jan. 1, 2022 to present that include any of these phrases: Alford Street; Kraft; soccer stadium; Constellation; or Designated Port Area or DPA. The City responded on April 22, 2024. Unsatisfied with the response, Ms. Crimaldi petitioned this office and this appeal, SPR24/1589, 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

Matt Lattanzi SPR24/1589 Page 2 June 10, 2024 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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. The City’s April 22nd response In its April 22, 2024 response, the City provided Mr. Stout with 17 files of records in pdf format. The City also provided a letter informing Mr. Stout that the City was withholding 111 emails under 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, After a careful individualized review of your request and City records, the City can confirm it has certain records responsive to your request, which are being produced to you. However, there are communications being withheld in accordance with exemption (d). Exemption (d) provides the City a basis for withholding, “inter- agency or intra-agency memoranda or letters relating to policy positions being

Matt Lattanzi SPR24/1589 Page 3 June 10, 2024 developed by the agency ... Therefore there are 111 email being withheld where drafts and proposals of a draft community benefits agreement was being negotiated. Based on the City’s response, I find that it has not met its burden of specificity to withhold the 111 emails, pursuant to Exemption (d). The City is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, I find the City has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). It is additionally uncertain what deliberative process remains ongoing and how disclosure of the records would taint the ongoing deliberative process. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Ms. Crimaldi 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. Ms. Crimaldi 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: Laura Crimaldi