Michael Saccone v. Office of the Comptroller (SPR 20252965)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2025 SPR25/2965 Darian Roberts, Esq. Assistant General Counsel Records Access Officer Office of the Comptroller One Ashburton Place Boston, MA 02108 Dear Attorney Roberts: I have received the petition of Mike Saccone appealing the response of the Office of the Comptroller (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 2, 2025, Mr. Saccone requested “[a]ny and all communications between the Office of the Comptroller and Massachusetts Commission for the Blind in response to Comptroller Memo FY2026-05.” The Office responded on October 7, 2025, and assigned reference number 25-159 to this request. Unsatisfied with the Office’s response, Mr. Saccone petitioned this office, and this appeal, SPR25/2965, was opened as a result. Subsequent to the opening of this appeal, the Office provided a further response to this office and Mr. Saccone on October 21, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld 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

Darian Roberts, Esq. SPR25/2965 Page 2 October 23, 2025 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 October 7th and October 21st Responses In its October 7, 2025 response, the Office provides one responsive record, and indicates that it is withholding one other pursuant to Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). In its October 21, 2025 response, the Office further expounds on its claims under Exemption (d) for withholding the Massachusetts Commission for the Blind response to Comptroller Memo FY2026-05. 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). 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 October 7th response, under Exemption (d), the Office argues the following:

Darian Roberts, Esq. SPR25/2965 Page 3 October 23, 2025 We are withholding one record because it contains information and legal or policy recommendations on matters found within an ongoing deliberative process and prepared in anticipation of litigation. See M.G.L. c. 4, § 7(26)(d). Specifically, the record pertains to the Commonwealth’s ongoing response to the federal government shutdown that began on October 1, 2025, and the Commonwealth continues to assess and deliberate legal and policy recommendations for appropriately addressing the disruption in federal funding. In its October 21st response, the Office further explains the following: Comptroller Memo FY2026-05 was a joint memorandum sent from the Office of the Comptroller and the Executive Office for Administration and Finance (“A&F”). Commonwealth agencies’ responses to that memo document policy concerns that are currently being considered as we formulate a response to the ongoing federal government shutdown. The policy deliberation exemption is intended to protect, “open, frank inter-agency and intra-agency deliberations regarding government decisions.” See DeRosa v. City of New Bedford, 471 Mass. 446, 457 (2015). “An inter- or intra-agency document may be withheld pursuant to the deliberative process privilege if it is: (1) ‘predecisional,’ i.e., ‘prepared in order to assist an agency decisionmaker in arriving at his decision,’ and (2) ‘deliberative,’ i.e., ‘actually … related to the process by which policies are formulated’.” See id. at 457-58. In this case, the MCB response is one of many from the several Commonwealth agencies to Comptroller Memo FY2026-05. These responses are directly relevant to discussions between the Office, A&F, and other Commonwealth government entities in developing policy positions related to the federal government shutdown. These responses are not factual reports, they are the opinions of Commonwealth agencies about the current state of federal funds and projections regarding future funding in the event of a federal government shutdown. They were prepared in anticipation of a federal government shutdown and continue to be relevant, as the shutdown is still ongoing with no clear end date. Releasing the response from MCB would open the door to all agency responses to Comptroller Memo FY2026-05 becoming available through public records requests, which would greatly harm the Commonwealth’s ability to properly assess and deliberate legal and policy recommendations for appropriately addressing issues related to the ongoing federal government shutdown. Specifically, it could highlight areas of financial vulnerability and have an impact on ongoing litigation by the Attorney General related to the Commonwealth’s receipt of federal funds. Based on the Office’s responses, where the Office has confirmed that the withheld record is an inter-agency memorandum, and part of an ongoing deliberative process, and has explained how its release would taint that process, I find the Office has met its burden to withhold the responsive record at this time. See G. L. c. 4, § 7(26)(d). Please be advised that any change in the status of the ongoing policy deliberations could affect the application of Exemption (d). See

Darian Roberts, Esq. SPR25/2965 Page 4 October 23, 2025 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”). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Saccone is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Mike Saccone