David Calhoun v. Cambridge, City of - Office of the City Solicitor (SPR 20252253)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 13, 2025 SPR25/2253 Seah Levy Public Records Access Officer Law Department City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of David Calhoun appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2025, Mr. Calhoun requested “… copies of all costs and payments made by the City directly or indirectly related [to] Legal Action taken against The Housing Appeals Committee and or 104 Stony Brook, LLC and a proposed 40B Development. Time period 2017 - July 18, 2025.” The City responded on July 29, 2025. Unsatisfied with the City’s response, Mr. Calhoun petitioned this office and this appeal, SPR25/2253, 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. 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. 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

Seah Levy SPR25/2253 Page 2 August 13, 2025 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 City’s July 29th Response In its July 29, 2025 response, the City withheld the responsive records in their entirety pursuant to Exemption (d) of the Public Records Law. Current Appeal In his July 30, 2025 petition to this office, Mr. Calhoun objected to the City’s withholding of the responsive records under Exemption (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). Furthermore, the preparation of and involvement in litigation by a public body entails the development of “policy positions” by that body, positions that are subject to change and refinement throughout the litigation process. The withholding of public records is permitted in so far as they concern the ongoing litigation or administrative proceedings of that public body. See Lafferty v. Martha’s Vineyard Commission, Superior Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS 107, *10. In its July 29, 2025 response, the Town stated: The City is denying your request for these records as they are exempt from production pursuant to Exemption G. L. c. 4 § 7(26)(d) of the Public Records law

Seah Levy SPR25/2253 Page 3 August 13, 2025 which protects records which are the subject of ongoing internal policy deliberations within an agency. These records are the subject of ongoing litigation in the matter of City of Cambridge v. Commonwealth of Massachusetts Housing Appeals Committee; and 104 Stony Brook, LLC., CA No. 2381CV02105. Courts and the Supervisor of Public Records have held that records concerning ongoing litigation fall within Exemption (d) of the Public Records law. See Lafferty v. Martha’s Vineyard Comm’n, No. 03-3397, 2004 WL 792712, *3 (Mass. Super. Ct. Apr. 9, 2004); Kent v. Commonwealth, No. 982693, 2000 WL 1473124, *3 (Mass. Super. Ct. July 27, 2000); Letter-Determination of the Supervisor of Public Records, SPR13/159, Sept. 20, 2013, at pp. 1-2. Based on the City’s response, it is unclear how the responsive records, in their entirety, constitute recommendations on legal and policy matters found within an ongoing deliberative process. Additionally, it is uncertain from the City’s response how the responsive records are “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); 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). The City must clarify these matters. It is additionally uncertain how the requested records, in their entirety, are the subject of disputes in ongoing litigation or administrative proceedings. G. L. c. 4 § 7(26)(d); Lafferty, 17 Mass. L. Rep. 501; see also SPR20/0114 Determination of the Supervisor of Records (January 31, 2020) (finding that records of legal costs were the subject of ongoing litigation where the plaintiff made specific allegations concerning the institutional impact of those costs). The City must clarify this matter. Consequently, I find that the City has not met its burden of specificity to withhold the responsive records in their entirety pursuant to Exemption (d). The City is advised that any information contained in these records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Conclusion Accordingly, the City is ordered to provide Mr. Calhoun 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. Calhoun may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1).

Seah Levy SPR25/2253 Page 4 August 13, 2025 Sincerely, Manza Arthur Supervisor of Records cc: David Calhoun