Paul R. DeRensis v. Brookline, Town of - Town Counsel (SPR 20252311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 20, 2025 SPR25/2311 Joe Callanan, Esq. Town Counsel Town of Brookline 333 Washington Street, 6th Floor Brookline, MA 02445 Dear Attorney Callanan: I have received the petition of Paul DeRensis, Esq., of Brooks and DeRensis, P.C., appealing the response of the Town of Brookline (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 23, 2025, Attorney DeRensis requested the following: [1] Please explain who is the individual complaining, by name and position if any, and who in the town received such complaint, again by name and position[;] [2] [A] copy of the full complaint…please also supply a copy of all documents of the Town whether emails, correspondence or communications to those outside the town, or internal to the town, that reference or describe that complaint against [an identified individual], and to the extent such documents exist, please also advise what the town’s reasoning was not to maintain confidentiality with respect to the complaint and the identity of the party complained of[;] [3] Please identify by name the person who was responsible in the Town for making the determination that the complaint rose to the level that an investigation should be undertaken, please identify all persons who were consulted or provided input into the decision and please explain what care and attention that decision making person undertook to look into relevant federal and state law applicable to this specific complaint before the determination was made that this could rise to the level of warranting an investigation[;] [4] [I]dentify in detail what was “unethical” with reference to the fact alleged in your letter…[;] 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

Joe Callanan, Esq. SPR25/2311 Page 2 August 20, 2025 [5] [P]rovide a citation to each charter provision, law, regulation, and/or town policy that you are alleging [an identified individual] violated[;] [6] [P]rovide a list of other Legislative Branch town meeting members who, prior to these allegations, have actually been found by the Executive Branch of the town government to be in violation of “unethical” standards by reasons of props used during deliberations at Brookline Town Meeting, and what were the consequences thereof, so that we know what the precedents have been for this investigation[;] [7] [I]dentify the law, regulation, policy, charter provision, or other authority or caselaw under which the membership of Legislative Branch of Town government is subject to investigation and possible consequences from the Executive Branch of Brookline town government related to deliberations at town meeting[;] [8] [A] copy of the Town[’s] referenced strict anti-retaliation policies, and … copies of any policies of the Town that prohibit retaliation against any person for engaging in conduct protected under the First Amendment to the U.S. Constitution[;] [9] [A] copy of the [T]own’s insurance policies relevant to coverage applicable to complaints against town meeting members regarding the content of their deliberations at town meeting. Prior Appeal This request was the subject of a prior appeal. See SPR25/2057 Determination of the Supervisor of Records (July 24, 2025). In my July 24th determination, I found that it was unclear whether the Town possessed additional records responsive to Items 6 and 9 of Attorney DeRensis’ request. The Town responded on August 5, 2025. Unsatisfied with the response, Attorney DeRensis petitioned this office and this appeal, SPR25/2311, 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.

Joe Callanan, Esq. SPR25/2311 Page 3 August 20, 2025 Att’y 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney DeRensis’ purpose in making the request has no bearing on the public status of any existing responsive records. The Town’s August 5th Response In its August 5, 2025 response, the Town withheld records responsive to Item 2 of the request, pursuant to Exemptions (d) and (f) of the Public Records Law. The Town informed Attorney DeRensis that it possessed no records responsive to Items 6 and 9 of the request. Current Appeal In his August 8, 2025 petition to this office, Attorney DeRensis contended that the Town had failed to meet its burden to withhold records responsive to Item 2. Additionally, Attorney DeRensis stated that the Town had failed to properly respond to Items 6 and 9 of the request, and modified Item 6 to include “all town documents containing the names of legislators who have been subject to these kinds of retaliatory complaints.” Item 2 – 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).

Joe Callanan, Esq. SPR25/2311 Page 4 August 20, 2025 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). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its August 5, 2025 response, the Town stated: Responsive documents may also include documents related to a pending investigation, in which [an identified individual] is a subject, that are protected by the work product doctrine, and thus, exemption (d), the deliberative process exemption. Documents related to an internal, or in this case an external, investigation may be protected as attorney work product. See Attorney Gen. v. Facebook, Inc., 487 Mass. 109, 110‐138 (2021) (applicability of the attorney‐client privilege and the work product doctrine to an internal investigation). Furthermore, the Supreme Judicial Court opined on the status of attorney work product under exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). As the Town has engaged an external investigator in an ongoing investigation into this matter where [an identified individual] is a subject of the investigation, the Town will not be able to release any records responsive to your second request due to exemption (d) of the PRL, and the attorney work‐product doctrine, as those documents you requested are relevant to that investigation. Based on the Town’s response, I find that it has not met its burden to withhold the responsive record under the work-product doctrine as it operates through Exemption (d). Specifically, it is unclear how the responsive record constitutes the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Town has not met its burden to show that the responsive record is not factual in nature, nor reasonably completed, nor that the record is interwoven with opinions or analysis leading to opinions. Id.

Joe Callanan, Esq. SPR25/2311 Page 5 August 20, 2025 Consequently, I find that the Town has not met its burden of specificity to withhold the responsive record in its entirety pursuant to Exemption (d). The Town is advised that any information contained in this record that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Item 2 – Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Id. at 289-90. In its August 5, 2025 response, the Town stated: While there are no allegations of any criminal activity in this case, police investigators typically do not share the information you requested … Furthermore, “[i]nformation relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials.” SPR 2020/0092 (March 11, 2020), at 4 … As the Town has engaged an external investigator in an ongoing investigation into this matter where [an identified individual] is a subject of the investigation, the Town will not be able to release any records responsive to your second request due to exemption (f) of the PRL. The disclosure of these materials would very likely prejudice the possibility of any effective investigation that such disclosure would not be in the public interest. Based on the Town’s response, it is unclear how disclosure of any segregable portion of the responsive record “would probably so prejudice the possibility of effective law enforcement

Joe Callanan, Esq. SPR25/2311 Page 6 August 20, 2025 that such disclosure would not be in the public interest[,]” as required to withhold records under Exemption (f). See Reinstein, 378 Mass. 281, 289-90 (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 this matter. Items 6 and 9 – No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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). Where the Town has confirmed that it possesses no records responsive to Items 6 and 9 of the request and this office has no authority to compel the Town to create records, I find that the Town has met its burden in responding to Items 6 and 9. Public Records Requests; Petitions to the Supervisor of Records In his appeal, Attorney DeRensis states the following: For Requests 6 and 9, Brookline asserts that it will not produce documents because the public records law “applies only to documents in existence of the governmental entity at the time the request was received,” and therefore we guess that Brookline must be intending to state that there are no documents that exist in response to Request 6. However, there is no such statement regarding Request 9. If the Town’s response is trying to say for Request 6 that no “list” exists, then we hereby modify this request to include all town documents containing the names of legislators who have been subject to these kinds of retaliatory complaints. Moreover, those documents that have already been processed to conclusion of any investigation, would be completed and not ongoing. Attorney DeRensis is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Consequently, I am unable to opine on Attorney DeRensis’ August 8th modification of his June 23rd request. Conclusion Accordingly, the Town is ordered to provide Attorney DeRensis 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

Joe Callanan, Esq. SPR25/2311 Page 7 August 20, 2025 pre@sec.state.ma.us. Attorney DeRensis may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul DeRensis, Esq.