James E. Palmeri v. Bernardston, Town of (SPR 20253639)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2025 SPR25/3639 Karen Kelly Town Administrator Town of Bernardston 38 Church Street, P. O. Box 504 Bernardston, MA 01337 Dear Ms. Kelly: I have received the petition of James E. Palmeri appealing the response of the Town of Bernardston (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 10, 2025, Mr. Palmeri requested, “[a]ny and all documents, reports, studies, and data related to a ‘wage study’ or ‘compensation study’ acquired, commissioned, or utilized by the Town of Bernardston or any of its boards, committees, or departments. This includes, but is not limited to, the final study report, draft documents, supporting data, and any communications (emails, letters) discussing the findings or implementation of the study.” The Town provided a response on December 10, 2025. Unsatisfied with the response, Mr. Palmeri petitioned this office and this appeal, SPR25/3639, was opened as a result. Subsequently, the Town provided a further response on December 11, 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

Karen Kelly SPR25/3639 Page 2 December 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 Town’s December 10th and December 11th Responses In its December 10, 2025 response, the Town identified documents responsive to the request and cited Exemption (d) of the Public Records Law to withhold the records in their entirety. In its December 11, 2025 response, the Town stated, “...the Town is working with a consultant to conduct the FY27 Wage and Salary Survey.” Current Appeal In his December 10, 2025 appeal, Mr. Palmeri asserts, “I feel I was wrongfully denied ... there appears to be an exemption for such ‘reasonably completed factual studies or reports’?” In his December 11, 2025 further appeal, Mr. Palmeri states, “[t]he only added information I would submit to you is the fact the Town has been working on a town wide wage study for several months. Over the last several weeks, I’ve asked for some sort of summary for aiding with my FY27 Police Department budget submission, which is due 12/31/25. I have been told each time it’s unavailable due to ‘working’ documents, but was assured it would be available for budget season.” 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,

Karen Kelly SPR25/3639 Page 3 December 23, 2025 § 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). In its response, the Town states, “[a]t this time, those records consist of drafts, preliminary analyses, and working documents related to the ongoing study. Pursuant to the Massachusetts Public Records Law, M.G.L. c. 4, §7, cl. 26(d), such inter-agency and intra- agency memoranda and notes are exempt from disclosure until finalized. Once the study is complete and final documents are available, the Town will provide access to those records consistent with the law. You will be notified when such records are ready for release.” Based on The Town’ response, 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”). Also, it is uncertain how disclosure of the records would taint any ongoing deliberative process. Further, the Town has not established how the records at issue are “inter-agency or intra- agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (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). Additionally, The Town is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. “Reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Consequently, The Town must clarify whether the records contain any factual information that can be segregated. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (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, § l0(a). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Palmeri 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 pre@sec.state.ma.us. Mr. Palmeri may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Karen Kelly SPR25/3639 Page 4 December 23, 2025 Sincerely, Manza Arthur Supervisor of Records cc: James E. Palmeri