Chris Van Buskirk v. Executive Office of Economic Development (SPR 20251700)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 7, 2025 SPR25/1700 Robert J. McGovern, Esq. Senior Deputy General Counsel Records Access Officer Executive Office of Economic Development One Ashburton Place, Room 2101 Boston, MA 02108 Dear Attorney McGovern: I have received the petition of Chris Van Buskirk, of the Boston Herald, appealing the response of the Executive Office of Economic Development (Office/EOED) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On May 22, 2025, Mr. Van Buskirk requested, “[a]ny and all memos [an identified] former Secretary authored to the incoming Healey administration in the fall of 2022.” The Office responded on June 5, 2025 and June 12, 2025. Unsatisfied with the Office’s responses, Mr. Van Buskirk petitioned this office and this appeal, SPR25/1700, was opened as a result. Subsequently, I learned that the Office provided a supplemental response to Mr. Van Buskirk on July 2, 2025. 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 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

Robert J. McGovern, Esq. SPR25/1700 Page 2 July 7, 2025 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 Office’s June 5th, June 12th and July 2nd Responses In its June 5, 2025 response, the Office stated, “[w]e are currently conducting a search for potentially responsive records and/or segregating any potentially responsive records but require additional time to respond to the request. Pursuant to G.L. c. 66, § l0(b)(vi), EOED anticipates providing a further response on or before June 12, 2025.” In its June 12, 2025 response, the Office cited Exemption (d) of the Public Records Law to withhold the requested record. In its July 2, 2025 response, the Office provided further information to withhold the requested record 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 June 12, 2025 response, the Office stated, “EOED has determined it has one record responsive to your request. However, the information contained therein is subject to an ongoing deliberate process review and is exempt from disclosure pursuant to the Deliberate Process Exemption of the Public Records Law. See M.G.L. c. 4, § 7(26)(d).” In its July 2, 2025 response, the Office asserted,

Robert J. McGovern, Esq. SPR25/1700 Page 3 July 7, 2025 The responsive record we have withheld . . . is a transition memo dated November 2022 prepared by [an identified individual], to Governor-elect . . . and Lieutenant- Governor Elect . . . This memorandum contains detailed analysis, opinions and recommendations related to numerous policy matters confronting the various offices, agencies and quasi-public authorities under [an identified] former Secretary’s supervision. The purpose of this memo was to facilitate the transition of power of the highest elected office of the Commonwealth and inform decision- makers from the incoming Healey Administration of various ongoing policy matters that they would face upon taking office. It is a high-level strategic planning document designed to provide advice about how to best utilize time and resources over the course of an administration and to inform future policy decisions. The policy matters addressed in the transition memorandum are by their nature ongoing and continue to be the subject of policy deliberations within the Governor’s Office, the Executive Office of Economic Development, and the Executive Office of Housing and Livable Communities. Indeed, the nature of a transition memorandum is that it addresses matters that warrant ongoing deliberation across Administrations, as opposed to matters of only short-term relevance. Accordingly, the Deliberative Process Exemption continues to apply to this record and will continue to apply during the Healey-Driscoll Administration. We also note that the transition of power from one gubernatorial administration to another requires that officials of the outgoing and incoming administrations be able to have the “open, frank . . . deliberations regarding government decisions” that the Deliberative Process Exemption protects. DaRosa v. City of New Bedford, 471 Mass. 446, 457 (2015). As far as we are aware, no gubernatorial administration in Massachusetts has ever before treated this kind of transition memo from its predecessors as subject to disclosure under the Public Records Law. To ensure that each outgoing administration offers that level of cooperation and candor, and to promote the public interest in a smooth transition of power, this kind of transition memorandum should not be disclosed. Based on the Office’s response, it is unclear whether the withheld record contains any factual information that can be segregated from the record. The Office 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). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Office must clarify this matter.

Robert J. McGovern, Esq. SPR25/1700 Page 4 July 7, 2025 Conclusion Accordingly, the Office is ordered to provide Mr. Van Buskirk 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. Van Buskirk may appeal the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Chris Van Buskirk