Jacquelyn Wehtje v. Fitchburg, City of (SPR 20253205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2025 SPR25/3205 Joanna Bilotta-Simeone City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta-Simeone: I have received the petition of Jacquelyn Wehtje appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2025, Ms. Wehtje requested “…a copy of the city’s ‘social equity policy’ referenced in the Mead, Talerman, Costa invoice for the period ended 3/15/25.” Previous Appeals This request was the subject of previous appeals. See SPR25/2637 Determination of the Supervisor of Records (September 17, 2025) and SPR25/2740 Determination of the Supervisor of Records (September 26, 2025). In my September 26th determination, I ordered the City to clarify its claims to withhold the responsive document under the attorney-client privilege. The City responded on October 30, 2025. Unsatisfied with the City’s response, Ms. Wehtje petitioned this office and this appeal, SPR25/3205, 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 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

Joanna Bilotta-Simeone SPR25/3205 Page 2 November 13, 2025 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. The City’s October 30th Response In its October 30, 2025 response, the City cited Exemption (d) of the Public Records Law to withhold the responsive record. Current Appeal In her appeal petition, Ms. Wehtje stated, “[t]he City of Fitchburg ignored the 10 day deadline in the state’s order and when they belatedly responded refused to also follow the state’s order…” 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: …the City is continuing to withhold the responsive records, but is doing so under G. L. c. 4, § 7(26)(d)… At the time of the underlying request – and at this time – the City’s “social equity policy” is still in draft form; has been neither finalized nor enacted; and does not contain any reasonably completed factual studies or

Joanna Bilotta-Simeone SPR25/3205 Page 3 November 13, 2025 reports. Hence, the draft policy fits squarely within the Deliberative Process Exemption. Based on the City’s response, it is unclear what deliberative process the responsive record relates 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 record would taint any ongoing deliberative process. Further, the City has not has not established how the record constitutes “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). The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Ms. Wehtje 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. Wehtje 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: Jacquelyn Wehtje Alexander M. Castro, Esq.