Jonathan Dame v. Massachusetts Bay Transportation Authority (SPR 20170928)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 24, 2017 SPR17/928 Julie Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Jonathan Dame of 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 an Option Agreement between the MBTA and Eversource. In a response dated July 5, 2017, the MBTA provided responsive records but redacted portions under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). 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, § 1O A( 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, § 1 O(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. If there are any fees associated with a response a written, good fait)l estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 A. Ciollo, Esq. SPR17/928 Page 2 July 24, 2017 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). In its July 5th response the MBTA explains "in our opinion, the Agreement merely provides the parties with the framework within which Eversource may or may not exercise 'the right and option to acquire a non-exclusive, perpetual easement' within premises located in Hudson, Stow Marlborough and Sudbury, Massachusetts." You further assert "[s]ince the overall transaction has not yet concluded, the information redacted from the Agreement remains part of a deliberative process between MBTA and Eversource." Finally, you explain "[o]nce the transaction is either completed or the option is not activated, you will be provided with an un redacted copy of the Agreement." The MBTA has not met its burden to establish that there is an ongoing deliberative process related to this document. For example, it is unclear how this particular agreement, which was signed by the parties, remains the subject of deliberation. Further, it remains unclear how the redacted information is not purely factual information, or how the document is not a "reasonably completed factual" study or report that must be disclosed. 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). The MBTA also asserts that the exhibits referenced in the agreement "have been redacted and are not attached." Please note that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I understand a Public Records Division staff attorney contacted your office and provided a copy of the file associated with this appeal.

Julie A. Ciollo, Esq. SPR17/928 Page 3 July 24, 2017 Conclusion Accordingly, the MBTA is hereby ordered to provide Mr. Dame with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jonathan Dame