Durgin, David v. Dudley, Town Of - Town Clerk (SPR 20260727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2026 SPR26/0727 Jonathan Ruda Town Administrator Town of Dudley 71 West Main Street Dudley, MA 01571 Dear Mr. Ruda: I have received the petition of David Durgin appealing the response of the Town of Dudley (Dudley) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 5, 2026, Mr. Durgin requested “a copy of the ‘Title Report on ownership of a portion of circle drive to be accepted as a public way’ the Town of Dudley paid for this report through the general fund.’ The Town responded on February 20, 2026. Unsatisfied with the Town’s response, Mr. Durgin petitioned this office, and this appeal, SPR26/0727, 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

Jonathan Ruda SPR26/0727 Page 2 March 17, 2026 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 February 20th Response In its February 20, 2026 response, the Town cites Exemption (d) of the Public Records Law for withholding a responsive record. See G. L. c. 4, § 7(26)(d). 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). In its February 20th response, under Exemption (d), the Town argues the following: The record you seek will be withheld from public disclosure at this time, pursuant to Exemption (d) to the Public Records Law. Exemption (d) to the Public Records Law exempts from disclosure those records which relate to the deliberative process of the agency. G.L. c. 4, §7(26)(d). The exemption applies to recommendations on legal and policy matters. See, e.g., Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237, n.8 (1988). In considering Exemption (d), the Massachusetts Supreme Judicial Court in General Electric Company v. Dep’t of Environmental Protection, 429 Mass. 798, 807 (1999) stated, “[t]he purpose of Exemption (d) is to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision.” See Leeman v. Cote, Supervisor of Records, 21 Mass. L. Rep. 411 (Mass. Super. Ct., Aug. 30, 2006) (Ruling Upon Plaintiff’s Motion for Judgment on the Pleadings and Order for Judgment). Here, the document requested impacts ongoing policy decisions including but not limited to the

Jonathan Ruda SPR26/0727 Page 3 March 17, 2026 ongoing waterline project, of which you are aware, as well as ongoing questions about snowplowing on various private ways. Based on the Town’s response, I find it is unclear how the record at issue constitutes “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). The Town must clarify this matter. Further, it is unclear how the record can be withheld in its entirety. In particular, it is not clear whether the withheld record contains factual information that can be segregated from the record. The Town is reminded that “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); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Mr. Durgin 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. Mr. Durgin may further appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Durgin