Adam Vaccaro v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20160042)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 19, 2016 SPR16/042 Ms. Marie Breen, Esq. First Assistant General Counsel MassDOT and MBTA Ten Park Plaza, Suite 4160 Boston, MA 02116 Dear Attorney Breen: I have received the petition of Adam Vaccaro of MuckRock appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Vaccaro requested a copy ofthe Berkeley Research Group report (report) concerning the MBTA Green Line Extension Project. This request was the subject of a prior appeal. See SPR15/916 Determination of the Supervisor ofRecords (January 8, 2016). In compliance with my January 8 order the MBTA provided Mr. Vaccaro with the report. The MBTA redacted portions of five (5) ofthe thirty-six (36) pages ofthe report, citing to Exemption (d) of the Public Records Law. G. L. c. 4, § 7 (26) (d). Mr. Vaccaro appealed the redactions, resulting in the present appeal. To assist in my review of this appeal the MBTA submitted an unredacted copy of the report for an in camera review. The Supervisor may require an inspection of the requested record(s) in camera during any investigation or any proceeding initiated pursuant to 950 C.M.R. 32.08. See 950 C.M.R. 32.08(6). This office will return the report to the MBT A upon completion of this appeal under separate cover. I wish to thank the MBTA for its cooperation during this investigation. 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Marie Breen, Esq. SPR16/042 Page 2 February 19,2016 Exemption (d) In a February 9, 2016 letter providing justification for the redactions made pursuant to Exemption (d), MBTA General Counsel John Englander explained the that the premature release of the redacted portions of the report could taint ongoing deliberative processes on legal and policy matters pertaining to umesolved claims, changes and open construction costs pertaining to Interim Guaranteed Maximum Price contracts that have not been awarded. In a February 10 discussion with an attorney on my staff, you confirmed Attorney Englander's statements. Exemption (d) applies to: 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. 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). Based upon the above, I find that MBT A has met its burden of specificity with respect to the portions of the responsive record redacted pursuant to Exemption (d) of the Public Records Law. As such, I decline to opine on any other exemptio claim wi respect to these redactions. cc: Mr. Adam Vaccaro