Jacquelyn Wehtje v. Fitchburg, City of - City Clerk (SPR 20253444)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2025 SPR25/3444 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); SPR25/2740 Determination of the Supervisor of Records (September 26, 2025); and SPR25/3205 Determination of the Supervisor of Records (November 13, 2025). In my November 13th determination, I ordered the City to clarify its claims to withhold the responsive document under Exemption (d) of the Public Records Law. The City responded on November 20, 2025. Unsatisfied with the City’s response, Ms. Wehtje petitioned this office and this appeal, SPR25/3444, 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. 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 SPR25/3444 Page 2 December 5, 2025 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. 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 November 20th Response In its November 20, 2025 response, the City expounded upon its claims to withhold the responsive record under Exemption (d) of the Public Records Law. Current Appeal In her appeal petition, Ms. Wehtje stated, “[the City has] not provided any ‘interagency’ excuses because there are none… It’s purely a city effort with no outside agencies involved…” In a series of supplemental emails to this office on November 26, 2025, Ms. Wehtje argued that the subject policy was “not in draft form” and “should not be secret.” 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:

Joanna Bilotta-Simeone SPR25/3444 Page 3 December 5, 2025 First, the City is working to complete and adopt the policy at issue, which – as noted above – “[it] is still in draft form; has been neither finalized nor enacted; and does not contain any reasonably completed factual studies or reports.” Hence, the deliberative process is necessarily “ongoing and incomplete”; and the City hereby confirms the same. Second, the draft social equity policy was created by the City and continues to be reviewed and revised by various City employees and/or public bodies. Lastly, as noted in its response to SPR25/2740, “the Secretary of the Commonwealth’s most recent public records law guide is clear that draft public policy records may be withheld under the exemption.” In Camera Inspection In order to facilitate a determination as to the applicability of the City’s claims to withhold the responsive record pursuant to Exemption (d) of the Public Records Law, the City must provide this office with an un-redacted copy of the responsive record for in camera inspection. After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay.

Joanna Bilotta-Simeone SPR25/3444 Page 4 December 5, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje Alexander M. Castro, Esq.