Wehtje, Jacquelyn v. Fitchburg, City of (SPR 20261107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 7, 2026 SPR26/1107 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.” Prior Appeal This request was the subject of a prior appeal. See SPR26/0786 Determination of the Supervisor of Records (March 12, 2026). In my March 12th determination, I ordered the City to clarify how the record can be withheld under Exemption (d) of the Public Records Law. The City responded on March 26, 2026. Unsatisfied with the response, Ms. Wehtje petitioned this office and this appeal, SPR26/1107, 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 SPR26/1107 Page 2 April 7, 2026 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. Current Appeal In her appeal petition, Ms. Wehtje contends: Here is a link to the video of the Commission’s last meeting at which this report is discussed . . . . You will note that as discussed in the video[:] 1) There is no deliberation happening. Instead, the officers are individually reviewing the report drafted by their consultant AKA advisor and making edits to it. In fact, if they were deliberating it would be a violation of open meeting law as no meeting has been called for such a deliberation. 2) The data was already collected by the consultant and they are merely doing edits. They are not gathering data. That is already done. . . . The report is a summary of what projects they are working on it. It is [factual] and is [not] a policy document. 3) The report was requested by the mayor so she can figure out what they do . . . . 4) The commission is the only governmental body involved. There is [no] interagency work on this report. 5) Releasing the report will not undermine its findings. . . . The City’s March 26th Response In its March 26, 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).

Joanna Bilotta-Simeone SPR26/1107 Page 3 April 7, 2026 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 March 26th response, the City stated To clarify: (1) the deliberative process is the Fitchburg Agricultural Commission’s (the “Commission”) collection of information and/or data and the analysis thereof, which will culminate in the report at issue; (2) the report is ongoing and incomplete in that the Commission has not yet completed its collection of information and/or data, nor has it completed its analysis thereof; (3) releasing incomplete information and/or data or releasing an incomplete analysis would clearly undermine the reports ultimate findings; and (4) the report is being done by the Commission, which is, no doubt, a government agency. Based on the City’s response, although the City states that the report is “ongoing and incomplete[,]” it is unclear what deliberative process remains ongoing or what legal or policy matters may be involved 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. As a result, the City has not sufficiently explained how the record is exempt from disclosure pursuant to Exemption (d). 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.

Joanna Bilotta-Simeone SPR26/1107 Page 4 April 7, 2026 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