Wehtje, Jacquelyn v. Fitchburg, City of - Agricultural Commission (SPR 20260786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2026 SPR26/0786 Joanna Bilotta-Simeone Records Access Officer 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 February 27, 2026, Ms. Wehtje requested the “2026 Agricultural Commission Report.” The City responded on March 3, 2026. Unsatisfied with the response, Ms. Wehtje petitioned this office and this appeal, SPR26/0786, 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

Joanna Bilotta-Simeone SPR26/0786 Page 2 March 12, 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. Current Appeal In her appeal petition, Ms. Wehtje contends: Just as minutes must be released even if only in draft form, the same should apply here. Please be advised that: 1. This is NOT an interagency matter, but involves a city commission sending a report to the mayor who appoints them. There are NO two or more agencies involved. 2. This is NOT some secret matter inasmuch as it is being reviewed in open and not executive session. . . . The City’s March 3rd Response In its March 3, 2026 response, the City cited Exemption (d) of the Public Records Law to withhold the requested record. 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).

Joanna Bilotta-Simeone SPR26/0786 Page 3 March 12, 2026 In its response, the City stated, “[t]he report you are requesting remains ongoing and incomplete and, if released, would compromise the report by prematurely disclosing incomplete data and/or findings. The report therefore falls squarely within the category of records protected by 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”). Also, it is uncertain how disclosure of the requested record would taint any ongoing deliberative process. Further, the City has not established how the record at issue is an “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); 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. Additionally, the City is advised that any information contained in this record 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 City must clarify whether the record contains 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, § 10(a). 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 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).

Joanna Bilotta-Simeone SPR26/0786 Page 4 March 12, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje