Joan P. Beckta v. Everett, City of - Office of the City Clerk (SPR 20253047)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2025 SPR25/3047 Matt Lattanzi, Esq. Director of the Planning & Development Department City of Everett 484 Broadway Everett, MA 02149 Dear Attorney Lattanzi: I have received the petition of Joan P. Beckta 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 September 10, 2025, Ms. Beckta requested “[a]ny document indicating the mayor made an effort to update the PILOT and Host Community Agreement or, in the alternative, that he contacted them and said ‘we don’t have to renegotiate. You give us enough.’ That includes, but is not limited to, a new PILOT or HCA, any message slips, any emails, any docs to and from Encore since the original 2013 Agreement.” The City responded on October 2, 2025. Unsatisfied with the City’s response, Ms. Beckta petitioned this office and this appeal, SPR25/3047, 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

Matt Lattanzi, Esq. SPR25/3047 Page 2 October 27, 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 October 2nd Response In its October 2, 2025 response, the City provided responsive records redacted pursuant to Exemption (d) of the Public Records Law. Current Appeal In her appeal petition, Ms. Beckta stated: The city responded to my request with some nonsense about the East of Broadway project, which was not at all what I asked for. Further… it is heavily redacted… I would have no way of knowing if what they redacted includes information about the original 1 Broadway (west of Broadway) property, which is what my request is for… 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). Under Exemption (d), the City stated: Certain information has been redacted from the enclosed responsive records in accordance with exemption (d) of the Public Records Law… This section has been interpreted to mean that requested materials may be withheld where drafts of

Matt Lattanzi, Esq. SPR25/3047 Page 3 October 27, 2025 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 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”). It is also uncertain how disclosure of the redacted information would taint any ongoing deliberative process. Additionally, I find that the City has not established how the redactions constitute “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 (2011) (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 Determination 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). Further, based on the City’s response and the information provided in the appeal petition, it is unclear whether the City possesses additional records responsive to the request, specifically regarding the “original 1 Broadway property” that Ms. Beckta states is the subject of her request. 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). To the extent that additional records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Ms. Beckta with a response to the request provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Beckta may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Matt Lattanzi, Esq. SPR25/3047 Page 4 October 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Joan P. Beckta