At first, it looked as though I was going to get the records I'd requested. Although it was long past the required 10-day response period, Peter Wilson, Deputy General Counsel at DCAM, wrote me on July 21, saying I should make an appointment to come in to review the records. I contacted Wilson's assistant, who told me she was attempting to track the records down. Weeks went by, and I checked in periodically.
Then, on August 21, I received a one-paragraph letter from Wilson, this time denying my request. In his letter, Wilson stated that the requested records were exempt from disclosure because they “relate to policy positions being developed” by the state. Wilson's letter added:
The purpose of this exemption is to allow government offices to deliberate and form policy by engaging in free and frank exchange of options and ideas, which would be inhibited by public scrutiny. [emphasis added]
Does the Public Records Law really have an exemption that talks about promoting the “free and frank exchange of options and ideas” and preventing that from being “inhibited by public scrutiny?”
I didn't think so. Here's the exemption in question. It states only that exempt documents include “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.” The exemption says nothing about feasibility sudies or estimates of the cost of state construction or renovation projects. It seemed to me that a feasibility study and cost estimate for a specific construction project does not involve the development of policy.
Moreover, the law states that this exemption shall not apply to “reasonably completed factual studies or reports.” In late August, I received a letter from Department of Developmental Services Commissioner Elin Howe, stating that bidding on the Wrentham project was scheduled for September, with a contract award scheduled for this month. If that was the case, any feasibility study on the project would have had to be completed by the time Wilson was denying my request.
My appeal to the state Public Records Division has been pending since August 27. This would seem to be an open-and-shut case. Yet, it took me weeks to get through to the Public Records attorney who has been handling it. Yesterday, he apologized for the delay. But one has to wonder, what the hangup is here. The attorney, by the way, has not requested Elin Howe's letter to me.
I'm not optimistic about ever getting these records, given the findings of a CommonWealth magazine article last year about the routine flouting of the Public Records law by agencies throughout state government.
The Wrentham records are one of two public records requests that DCAM has denied the Fernald League. I'll write about the saga of our second request in a future post.
So all I can offer is my recollection of a class I took two or three years ago, but maybe it’ll be helpful. I think you can sue in court and get around the secretary of state and AG process for records requests. I attended a class at the Massachusetts Continuing Legal Education a few years ago on public records requests. One of the presenters (who might have been legal counsel for the Globe) talked about alternative and faster ways to push through the bureaucracy and reported success in securing judgments through the courts. They probably have the materials from past classes to purchase at their bookstore which is in downtown crossing.
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p>This doesn’t get to the problem with the public records law or the responsiveness of certain agencies, however, it might get you your records and if your with a group with resources this isn’t out of the question. The other strategy is to go to another agency or quasi state agency that might have a copy of the feasibility study and put the request to them. Would someone from the Division of Health Care Finance and Policy have a copy? It’s also likely that the someone in the Department of Development Services could have a copy.
We’ll wait to see how the Supervisor of Public Records rules on this. Going to court is always a possibility, but I’ve never known that to be a fast process either. Also, it can be expensive. Apparently no one has these documents other than DCAM. My original request was both to DCAM and DDS, and DDS referred me to DCAM.
I can’t wait for the next installment of this continuing saga or the next ridiculous excuse the Supervisor of Public Records gives you.
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p>FORMING POLICY! WHAT free exchange of options and ideas can they possibly be referring to?
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p>There is no doubt the policy has already been established, without the consideration of options. The Commissioner’s response to you stated that they would be awarding the contract in October. So it has already been decided to renovate Wrentham regardless of the cost or any real consideration of other options.
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p>If other options were considered or some sort of analysis was accomplished that proved that this was the best course of action you would think they would be anxious to produce it and tell you to stop bothering them.
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p>Update….the DDS Deputy Commissioner of Facilities stated in a recent Fernald meeting (10/4) that a contract would be signed that week for the renovations at Wrentham. Cost was not mentioned.
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p>The decision to make renovations at Wrentham was made a long time ago……. PERIOD…..no free exchange of options and ideas requested or wanted.