Emma Rindlisbacher v. Taunton, City of - City Clerk (SPR 20251200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 14, 2025 SPR25/1200 Matthew J. Costa, Esq. City Solicitor City of Taunton 15 Summer Street Taunton, MA 02780 Dear Attorney Costa: I have received the petition of Emma Rindlisbacher appealing the response of the City of Taunton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 2025, Ms. Rindlisbacher made the following request: The job description for “Substance Use Recovery & Prevention Coordinator” says: “Implements goals of the City of Taunton Substance Use Action Plan, compiles and analyzes data to measure success, works with stakeholders to create Phase 2 of Action Plan.” Can you please send me phase one of the action plan, pursuant to mass public records laws. The City responded on Aril 25, 2025. Unsatisfied with the City’s response, Ms. Rindlisbacher petitioned this office, and this appeal, SPR25/1200, 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. 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

Matthew J. Costa, Esq. SPR25/1200 Page 2 May 14, 2025 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 April 25th Response In its April 25, 2025 response, the City indicates that it is withholding “The Action Plan for the Opioid Settlement Funds” pursuant to Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). 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 April 25th response, the City argues the following: The Action Plan for the Opioid Settlement Funds has not yet been finalized. We do not consider this information to be a public record subject to disclosure, at this time, pursuant to exemption (d) of the public records law. M.G.L. c. 4, sec. 7, clause 26(d). One of the tasks of the Substance Use Recovery & Prevention Coordinator who will be hired in the coming weeks will be to finalize the Action Plan. At that time, the full Action Plan will be presented to City Council and shared with the general

Matthew J. Costa, Esq. SPR25/1200 Page 3 May 14, 2025 public. We ask for your patience as we complete this process and we will provide you with a copy of this document once it is finalized. Based on the City’s response, I find it is unclear what deliberative process the responsive record relates to, or how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the record would taint any ongoing deliberative process. Additionally, I find the City has not established how the record at issue constitutes “inter- agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. 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”); City 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). The City must clarify these matters. Further, any information contained in the responsive record 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). Conclusion Accordingly, the City is ordered to provide Ms. Rindlisbacher 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. Ms. Rindlisbacher 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: Emma Rindlisbacher