Paul Burns v. Executive Office for Administration & Finance (SPR 20242279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2024 SPR24/2279 Carlos E. Loredo, Esq. Associate Counsel Executive Office for Administration and Finance State House, Room 373 24 Beacon Street Boston, MA 02133 Dear Attorney Loredo: I have received the petition of Paul Burns appealing the response of the Executive Office for Administration and Finance (Office/A&F) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 5, 2024, Mr. Burns requested the following records “pertaining to the planned shelter at Bay State Correctional Center in Norfolk. . .” A) the email addresses for [a list of three] Commonwealth employees ... B) a copy of the implementation/readiness plan for the shelter, detailing what actions are to be performed on what dates leading up to AND after the shelter opening date C) records of all upgrades, construction, painting, retrofit, razor wire removal, including the costs and, when outsourced, names of contractors/vendors, leading up to and after the shelter opening date. D) records of what the steady state monthly cost is expected to be for the shelter after the opening date, delineated by line item. Previous Appeal This request was the subject of a previous appeal. See SPR24/1845 Determination of the Supervisor of Records (July 10, 2024) and SPR24/2099 Determination of the Supervisor of Records (August 6, 2024). In my August 6th determination, I closed SPR/24/2099 in light of the Office providing a supplemental response on August 2, 2024. Unsatisfied with the Office’s response, Mr. Burns petitioned this office, and this appeal, SPR24/2279, was opened as a result. Subsequent to the opening of this appeal, in a letter to Mr. Burns and this office on August 14, 2024, the Office provided a further response. In an email to this office and the Office on the same day, Mr. Burns further objected to the Office’s August 14th response. 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

Carlos E. Loredo, Esq. SPR24/2279 Page 2 August 26, 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. 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 his appeal petition, Mr. Burns contends the following: 1. I had asked for line-item detail showing the costs involved, by vendor, for the work that has been done to renovate the site. I was provided with a list of vendors used, and I was provided with reference to a website where state expenditures could be looked up by vendor. Upon using this system, I discovered there is no easy way to correlate an amount spent with a vendor to the site that it was worked on (the shelter in Norfolk, in this case). In fact, many vendors have provided work across the system. So, this has not been addressed to my satisfaction. 2. I was not provided with information related to the ongoing operating cost of the shelter. I continue to maintain that A&F’s response to this point is spurious, in my opinion. Although the costs of the site may be partially variable based upon phased implementation, it is known what the operating cost has been (since the site was opened), and assuming the state uses good practices in budgeting, there are estimates on what the operating cost is estimated to be in the foreseeable future. The Office’s Responses In its previous July 18, 2024 response, the Office provided numerous responsive records, and indicated it was withholding others pursuant to Exemptions (d) and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(d), (n). In its August 2, 2024 response, the Office provided

Carlos E. Loredo, Esq. SPR24/2279 Page 3 August 26, 2024 additional responsive records, including records previously withheld under Exemption (n), and indicated it was withholding and redacting others under Exemption (d). In its August 14, 2024 response, the Office provides an additional record “that is responsive to [the] request for records of actual costs in A&F’s possession related to the Bay State overflow site,” and states that it continues to withhold one record pursuant to Exemption (d). See G. L. c. 4, § 7(26)(d). In an email to this office on August 14, 2024, Mr. Burns states that “I continue to maintain my position regarding the (improper, in my opinion) withholding of operating costs...” 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 August 14th response, under Exemption (d), the Office argues the following: A&F continues to withhold 1 document containing the projected monthly costs related to the Bay State overflow site for reasons asserted in A&F’s previous correspondence regarding appeal number SPR24/1845. While A&F has provided records of actual costs in A&F’s possession related to the site, the projections of expected costs relate to ongoing deliberations and are in no way completed or factual. Rather, they are subject to change and fluctuate because of policy decisions and other factors impacting the phased opening of the Bay State overflow site. As a result, this document is properly withheld in its entirety and exempt from disclosure pursuant G.L. c. 4, § 7(26)(d). In its previous July 18, 2024 response, the Office also provided the following information: A&F withheld a document containing the projected monthly costs related to the

Carlos E. Loredo, Esq. SPR24/2279 Page 4 August 26, 2024 Bay State Site, which is responsive to the request for records of the monthly costs. The projections related to ongoing deliberations and are in no way completed or factual. Rather, they are subject to change and fluctuate because of policy decisions, ongoing capital improvements, and other factors impacting the phased opening of the Bay State Site. As a result, this document is properly withheld in its entirety and exempt from disclosure. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (d) claim made by the Office to withhold the responsive record, the Office must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Office’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay.

Carlos E. Loredo, Esq. SPR24/2279 Page 5 August 26, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Paul Burns