Dustin Whiteaker v. Clinton, Town of - Town Administrator (SPR 20251976)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2025 SPR25/1976 Michael J. Ward Town Administrator Town of Clinton 242 Church Street Clinton, MA 01510 Dear Mr. Ward: I have received the petition of Dustin Whiteaker appealing the response of the Town of Clinton (Town) 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. Whiteaker requested, “...a copy of this Parow consulting report that the fire department employees participated in.” Prior Appeal This request was the subject of a prior appeal. See SPR25/1606 Determination of the Supervisor of Records (June 20, 2025). In my June 20th determination, I found that the Town’s June 6th response did not contain the specificity required in a denial of access to public records. As a result, I found that the Town did not meet its burden of specificity in claiming Exemptions (b) and (d) of the Public Records Law to withhold the requested report from disclosure. The Town responded on July 4, 2025. Unsatisfied with the response, Mr. Whiteaker petitioned this office and this appeal, SPR25/1976, 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

Michael J. Ward SPR25/1976 Page 2 July 23, 2025 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, Mr. Whiteaker asserts, “I am appealing the withholding of this request as stated in the provided email from attorney ... that I received on 7/4/2025[.] The reasoning to withhold the report citing ‘the disclosure of which could compromise the safety of firefighters and/or the public’. The fact that there is a lack of department policies and gross mismanagement of the department is the only thing compromising firefighter safety and that needs to be made public.” The Town’s July 4th Response In its July 4, 2025 response, the Town cited Exemptions (b) and (d) of the Public Records Law to withhold the requested record in its entirety. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act).

Michael J. Ward SPR25/1976 Page 3 July 23, 2025 The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). 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 Town stated, While the Town admittedly retained Parow Consulting & Associates to conduct a review of the Fire Department’s internal operations, policies and culture, and to provide recommendations to address any concerns, the final Report provided by Parow is currently in the process of being reviewed, deliberated and addressed by the Fire Chief and Town Administrator, with Select Board direction, so as to address any concerns and/or recommendations contained in the Report, including, but not limited to, the potential implementation of new or revised polices/ procedures. Since this deliberative process has not yet been completed, a release of the Report to the public at this time would be premature and could negatively impact the ongoing deliberative process. Furthermore, the Report deals exclusively with the internal operations of the Fire Department, including the Department’s current internal culture and firefighter relationships, the disclosure of which could compromise the safety of firefighters and/or the public.

Michael J. Ward SPR25/1976 Page 4 July 23, 2025 Based on the Town’s response, it is unclear how the requested record, in its entirety, relates solely to its internal personnel rules and practices as stated in Exemption (b) of the Public Records Law. Also, the Town did not provide supporting information to demonstrate how disclosure of the records would hinder the proper performance of the Town’s necessary government function. The Town must clarify these matters. Further, the Town has not explained how the disclosure of the record would taint the ongoing deliberative process. As a result, the Town has not sufficiently explained how the record is exempt from disclosure, in its entirety, pursuant to Exemption (d) of the Public Records Law. The Town 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). Hence, the Town must clarify whether there is factual information that can be segregated from the responsive record. 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 Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Whiteaker with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Whiteaker may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Dustin Whiteaker