William E. McKeon, Jr., Esq. v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20160238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 15, 2016 SPR16/238 Ms. Nehar Dhupar, Esq. Massachusetts Department of Transportation Office of the General Counsel 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Dhupar: I have received the petition of William McKeon appealing the response of the Massachusetts Department of Transportation-Highway Division (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Speciftcally, Mr. McKeon requested an opportunity to inspect an "Application for Permit to Access State Highway #52014- 0523." Initially you responded on April1, 2016 denying Attorney McKeon his request claiming the Deliberative Process Exemption, Exemption (d), to withhold the responsive records. Objecting to this denial of his request for public records, Attorney McKeon petitioned this office. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The ten--day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide a records, fee estimate for provision of the records, or a denial. Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. On April 1, you responded to Attorney McKeon, "In order for this curb-cut to be inspected the administrative process must have been completed in connection with this application and ready to be issued to the applicant upon the payment of the required fees." Even though you conceded that "a curb-cut application is an ancillary document. .. therefore, it is a public r.ecord subject to mandatory disclosure or aninspection ... " but you further contended, "unless prohibited by one or more of the statutory exemptions." Claiming Exemption (d), you . ' is maintained the "administrative process has not been completed therefore the application not in existence at the time of your request, and, therefore, not subject to mandatory disclosure or an OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Neha Dhupar, Esq. SPR16/238 Page 2 · April15, 2016 inspection." From these response it is unclear if the requested record exist or not and if it does an analysis ofExemption (d) is warranted. 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. 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). The Department's written response does not explain with specificity to Attorney McKeon what legal or policy positions these records are related to, nor does it explain how their disclosure would taint the deliberative process. The response merely states that the responsive document "is not in existence at the time of your request" due to the incomplete "administrative process." As a result, the Department has failed to explain how the documents containing the responsive records are exempt from disclosure in their entirety pursuant to Exemption (d). See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (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, § 1O (a). The Department is reminded that "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). Order Whereas you had indicated to this office that you will be providing the responsive records, accordingly, Department is hereby ordered, within ten (1 0) days, to review the requests made by Attorney McKeon and provide a written response to him, made in accordance with the

Ms. Neha Dhupar, Esq. SPR16/238 Page 3 April15, 2016 Public Records Law, its Access Regulations and this order. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney McKeon a written explanation, with specificity, how a particular exemption applies to each record. 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 Department in responding to requests for public records I refer you to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys and other members of 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 Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. cc: William McKeon, Jr., Esq.