Harry Mattison v. Massachusetts Department of Transportation (SPR 20171712)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 28, 2017 SPR17/1712 William Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Harry Mattison appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on November 22, 2017 Mr. Mattison requested a copy of "[a]ll documents related to cost data for the I-90 Allston Interchange Improvement Project (Project File No. 606475) presented to the public at the November 13, 2017 Joint Meeting of the Fiscal & Management Control Board and MassDOT Board." In a response dated December 8, 2017, MassDOT denied Mr. Mattison's request pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Dissatisfied with MassDOT's response, Mr. Mattison appealed and SPRl 7/1712 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, § lO(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 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

William Doyle, Esq. SPR17/1712 Page 2 December 28, 2017 MassDOT's Response Exemption (d) 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. 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 subject to disclosure). In your December 8th response, you explain that MassDOT is currently in the environmental review and planning stages, and that no final decision has been reached as to what form the project will ultimately take. You state, "[d ]uring such early phases of a project, MassDOT personnel are gathering information, engaging in meetings and other discussions, and generally attempting to aid the Department (MassDOT) in arriving at a final determination of what avenue to pursue." It is Mr. Mattison's contention that MassDOT's statement that the project is in the early planning stages is incorrect, because the planning stage is more than half complete. With his December 13th petition, Mr. Mattison included two news articles from 2013 which informed the public that the project had been announced by former Governor Deval Patrick, and another news article by the Boston Globe which published MassDOT's initial design for the project. Mr. Mattison also included in his appeal records previously produced to the public by MassDOT regarding this matter. Mr. Mattison further notes "Mr. Doyle's claim that 'Releasing estimates of the cost of this work, both internal estimates and any estimates/bids prepared by others, would put MassDOT at a disadvantage in any future competitive bidding process for the work' cannot be true. Because if it were, MassDOT would not have released the estimates that it has already released."

William Doyle, Esq. SPRl 7/1712 Page 3 December 28, 2017 MassDOT has only provided a generalization of what steps, or phases that MassDOT normally takes involving the commencement of any project that MassDOT commences. A review of Slide 19 of MassDOT' s Joint Board Meeting presentation shows that the costs for the Major Elements of the project are broken-down into Phase 1, Phase 2 and Phase 3. Therefore, it is unclear what specific phase of the project is currently ongoing. MassDOT indicates that release of the back-up data and records that were used to develop the estimated costs presented to the public in November and December 2017 will put MassDOT in a competitive disadvantage in any future bidding process for work on this project. You cited the 2015 Supreme Judicial Court (SJC) decision in DaRosa v. City of New Bedford to support your position. See DaRosa v. City of New Bedford, 471 Mass. 446 (2015). You claim that in DaRosa, the SJC explained that Exemption (d) is intended to avoid the premature release of materials that could taint an ongoing deliberative process in order to promote open, frank inter-agency and intra-agency deliberations regarding governmental decisions. Id., at 457 .. In DaRosa, the SJC stated, "[w]e recognize that [E]xemption (d) protects documents from disclosure 'only while policy is being developed,' that is, while the deliberative process is ongoing and incomplete." DaRosa, at459 n.16, (citing Babets, 403 Mass. at 237 n.8). Further, the Babets Court stated, "[t]he Legislature has thus chosen to insulate the deliberative process from scrutiny only until it is completed, at which time the documents thereby generated become publicly available." Babets, 403 Mass. at 237 n.8. I find that MassDOT has not met its burden to show why purely factual data within the responsive records cannot be disclosed or how disclosure would taint the deliberative process, particularly in light of MassDOT' s previous release of information to the public. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Therefore, MassDOT has not met its burden under Exemption (d) to withhold responsive records in their entirety. MassDOT is reminded that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). It is my understanding that an attorney in the Public Records Division contacted you regarding this appeal. Conclusion Accordingly, MassDOT is ordered to provide Mr. Mattison with a supplemental 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 P.J~@.sec.state.mq,_us.

William Doyle, Esq. SPRI 7/1712 Page 4 December 28, 2017 Sincerely, ~~. Rebecca S. Murray Supervisor of Records cc: Harry Mattison