Vaccaro, Adam v. Massachusetts Bay Transportation Authority (SPR 20150916)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams January 8, 2016 Supervisor ofR ecords SPRlS/876, SPRlS/916 Mr. John Englander, Esq. General Counsel MassDOT- MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Englander: I have received the petitions of Jack Sullivan of Commonwealth Magazine!Mass!NC (SPR15/876) and Adam Vaccaro of MuckRock (SPR15/916) appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to their requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Sullivan and Mr. Vaccaro separately requested a copy of a report drafted by Berkeley Research Group, a Consultancy firm hired by the MBTA regarding the a proposal to expand the MBTA 's Green Line subway service. Both requests were denied, citing the common law attorney client privilege and deliberative process exemption to the Public Records Law. Both Mr. Sullivan and Mr. Vaccaro appealed, under separate cover. In a telephone conversation with an attorney on my staff, on December 18,2015, Assistant General Counsel Susan Krupanski indicated that the MBTA continues to withhold the report. Whereas the record sought, response and outcome are identical I have consolidated both appeals into one written determination. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 (c ); 950 C.M.R. 32.08(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 town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Common law attorney client privilege The MBTA claimed that the common law attorney-client privilege allows it to withhold the report. The question of whether this privilege extends to governmental entities was discussed OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. John Englander, Esq. SPR15/876, SPR15/916 Page2 January 8, 2016 in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444 (2008). The Court found that the privilege applies in the public realm. The Supervisor of Records has the authority to determine whether records may be withheld as privileged. See Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609,614-615 (1993). The attorney-client privilege protects confidential communications between and attorney and his client. However, in order for the claim of attorney-client privilege to be valid, the custodian has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). I find that the MBTA's response fails to meet the specificity requirements to support withholding the document upon the common law attorney-client privilege. Exemption (d) The MBTA also claims that the report may be withheld pursuant to Exemption (d) of the Public Records Law. Therefore, Exemption (d) merits consideration. Exemption (d), also known as the deliberative process exemption, allows for withholding of records that are: 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) (emphasis added) 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. Babets v. Secretary of the Executive Office ofHuman Services, 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 Environmental Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.)

Mr. John Englander, Esq. SPR15/876, SPR15/916 Page 3 January 8, 2016 To support its Exemption (d) claim the MBTA responses state that report is in draft form and has not been finalized. The MBTA also cites the findings of the Court in DaRosa v. City of New Bedford, 471 Mass. 446 (2015) to support nondisclosure pursuant to Exemption (d). I find the MBTA's responses fail to show the applicability of DaRosa to the responsive records. Further, the MBTA has failed to show why any factual non-deliberative information must be withheld. Accordingly, whereas the MBTA has not overcome the presumption that the requested report is public, the MBTA is hereby ordered, within ten (10) days ofthis order, to provide Mr. Sullivan and Mr. Vaccaro with the requested report. If the MBTA maintains that any portion of the responsive record is exempt from disclosure it must, within ten (1 0) days provide to Mr. Sullivan and Mr. Vaccaro a written explanation, with specificity, how a particular exemption applies to the report in its entirety or portions of the report. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec. state.ma. us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the MBTA in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Recor s Law upon request. Please contact my office directly at the telephone numbe b ve for her information. cc: Ms. Susan M. Krupanski, Esq. Mr. Jack Sullivan Mr. Adam Vaccaro