Colman Herman v. Division of Administrative Law Appeals (SPR 20242003)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2024 SPR24/2003 Sitthikay Phongsa Records Access officer Division of Administrative Law Appeals 14 Summer Street, Fourth Floor Malden, MA 02148 Dear Ms. Phongsa: I have received the petition of Colman Herman appealing the response of the Division of Administrative Law Appeals (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 12, 2024, Mr. Herman requested, “… [the Division]’s 2023 annual report to the legislature. On June 26, 2024, the Division responded and stated they will provide a copy of the report once it is filed with the legislature. In response, on June 27, 2024, Mr. Herman requested, “…drafts of [the Division]’s 2023 annual report to the legislature. The Division provided a response on July 12, 2024, asserting Exemption (d) of the Public Records Law to withhold the records in their entirety. Unsatisfied with the Division’s response, Mr. Herman petitioned this office and this appeal, SPR24/2003, was opened as a result. Subsequently, on July 19, 2024, the Division provided a supplemental response. Mr. Herman further appealed this supplemental response on July 21, 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. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also 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

Sitthikay Phongsa SPR24/2003 Page 2 July 29, 2024 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 Division’s July 12th and July 19th responses In its July 12, 2024 response, the Division cited Exemption (d) of the Public Records Law to withhold the requested records in their entirety. In its July 19, 2024 response, the Division further elaborated its Exemption (d) claim. Current Appeal In his appeal, Mr. Herman stated, “[f]actual reports are not subject to exemption (d) and the DALA annual reports are clearly factual reports. For evidence of the latter, see, for example, DALA’s 2022 annual report….” Following the Division’s July 19, 2024 supplemental response, Mr. Herman stated: [The Division] claims exemption (d)… as a basis for withholding drafts of the agency’s 2023 annual report in their entirety. I assert… that the responsive records can be suitably redacted if necessary. …[F]actual information… cannot be legally redacted from the responsive records. 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

Sitthikay Phongsa SPR24/2003 Page 3 July 29, 2024 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 July 12, 2024 response, the Division stated, “[t]he documents you requested are exempt from production pursuant to the deliberative process exemption of the Public Records law, G. L. c. 4, § 7(26)(d), which exempts ‘inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency’…. The Division… will provide you with a copy of the 2023 annual report when it is filed with the Legislature.” In its July 19, 2024 response, the Division states Mr. Herman claims … the legislative report is simply a compendium of facts and hence does not involve agency deliberation. That is not an accurate description of [the Division]’s annual report to the legislature. While the report will contain numerous facts, it is an opportunity for [the Division] to describe its work to the legislature and ultimately to the public. Such a task inevitably involves internal decisions about what to communicate and how to best describe [the Division]’s work in a given year…. [R]evealing drafts may “inaccurately reflect or prematurely disclose the views of the agency.” …[The Division] does not want to make a premature disclosure, particularly when the legislative report is nearly complete and it will provide a copy to Mr. Herman when it sends its report to the legislature. Based on the Division’s response, it is unclear whether the withheld records contain factual information that can be segregated from the records. The Division 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). The Division has also not explained how the disclosure of the documents would taint the deliberative process. Further, it is uncertain what deliberative process the responsive records relate to, nor how such a process remains ongoing. As a result, the Division has not sufficiently explained how the records are exempt from disclosure, in their entirety, pursuant to Exemption (d). Conclusion Accordingly, the Division is ordered to provide Mr. Herman 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 the response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the Division’s response within ninety days. See 950 C.M.R. 32.08(1).

Sitthikay Phongsa SPR24/2003 Page 4 July 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman