Jonathan Dame v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20170572)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2017 SPR17/572 Julie Ciollo Records Access Officer Massachusetts Bay Transportation Authority Office of the General Counsel 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Ms. Ciollo: I have received the petition of Jonathan Dame of the Metro West Daily News appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dame requested a copy of the Option Agreement between MBTA and Eversource dated on or about January 23, 2017 and regarding a potential transmission line project in the Town of Sudbury. In an April 10, 2017 letter, the MBTA denied Mr. Dame's request for the Option Agreement pursuant to Exemption (d) of the Public Records Law. Mr. Dame petitioned this office and an appeal was opened. 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, § lOA(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 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, § lO(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 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. 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

Julie Ciollo, RAO SPRl 7/572 Page 2 May 10, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff members 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. Exemption (d) MBTA's April 26, 2017 response states that the matter between the MBTA and Eversource is still on-going and has not yet been finalized, therefore, the MBTA is withholding release of the unexecuted document under Exemption ( d) of the Public Records Law. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause 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. Sec'y of the Exec. Office of Human 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 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 MBTA's response states that the record (option agreement) pertains to certain unresolved and on-going deliberative matters to which Exemption ( d) applies. Further, the response states that the parties are currently negotiating certain unresolved and open terms and conditions of the draft agreement, therefore, release of the document is premature at this point and could taint the ongoing deliberative process regarding governmental decisions.

·J ulie Ciollo, RAO SPRl 7/572 Page 3 May 10, 2017 It is unclear how providing even a redacted version of the draft agreement containing terms and conditions that are not currently being negotiated would taint the deliberative process. The MBTA has not met its burden of proving with specificity why the draft agreement must be withheld in its entirety pursuant to Exemption (d ). Please be advised that the exemptions are narrowly construed and are not blanket in nature. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). It is my understanding that a Public Records Division staff member provided the MBTA with a copy of the appeal file, and informed the MBTA that it must provide a supplemental response to support its Exemption (d ) claim. Accordingly, whereas MBTA will provide a supplemental response regarding its Exemption ( d) claim, I will consider this appeal closed with the proviso that Mr. Dame is provided with the response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Mr. Dame may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jonathan Dame