Liz Neisloss v. Everett, City of - Solicitor's Office (SPR 20252155)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 4, 2025 SPR25/2155 Colleen Mejia, Esq. City Solicitor City of Everett 484 Broadway Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Liz Neisloss, of GBH News, appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 12, 2025, Ms. Neisloss requested, “...a copy of the following documents [or documents containing the following information] be provided to me: emails and texts between Mayor... and any members of the Kraft Group from 2020 to the present related to the subject of the building of a stadium in Everett.” Previous Appeal This request was the subject of a previous appeal. See SPR25/1897 Determination of the Supervisor of Records (July 16, 2025). In my July 16th determination, I found that it was unclear if the City possessed any additional records responsive to Ms. Neisloss’ request. The City responded on July 16, 2025. Unsatisfied with the response, Ms. Neisloss petitioned this office and this appeal, SPR25/2155, 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

Colleen Mejia, Esq. SPR25/2155 Page 2 August 4, 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 her July 22, 2025 appeal, Ms. Neisloss asserts, I am again appealing Everett’s response to my records request for the following reasons: I continue to believe I have been denied access to requested records, and that the search was inadequate: I did not receive any texts, and no emails related to the requested subject other than Zoom meeting invites and almost completely redacted documents . . . I continue to believe exemptions and sweeping redaction are not justified here . . . The City’s July 16th Response In its July 16, 2025 response, the City stated, “[t]here are no additional records.” In its prior June 26, 2025 response, the City advised, “[c]ertain information has been redacted from the enclosed responsive records in accordance with exemption (d) of the Public Records Law.” See SPR25/1897. 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

Colleen Mejia, Esq. SPR25/2155 Page 3 August 4, 2025 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 26, 2025 response, the City advised, “[t]his section has been interpreted to mean that requested materials may be withheld where drafts of documents are still in a deliberative process. The information that was redacted contains proposals and draft language which has not been finalized.” Based on the City’s response, I find the City has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective 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”); Cty. 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); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). In addition, it is unclear what deliberative process the responsive records relate to, nor 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”). Further, although the City claims that “[t]he information that was redacted contains proposals and draft language which has not been finalized[,]” the City did not provide any supporting information to demonstrate how disclosure of the redacted information would taint any ongoing deliberative process. The City must clarify these matters. No Duty to Create Records Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Accordingly, where the City has confirmed that it does not possess additional records, and this office has no authority to compel the City to create records, I find that Ms. Neisloss’ appeal regarding the existence of additional records is resolved. Conclusion Accordingly, the City is ordered to provide Ms. Neisloss with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10

Colleen Mejia, Esq. SPR25/2155 Page 4 August 4, 2025 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. Neisloss 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: Liz Neisloss