Edward Mulrane v. Massachusetts Bay Transportation Authority (SPR 20180766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 7, 2018 SPR18/766 Julie Ciollo, Esq. Assistant General Counsel - RAO Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Edward Mulrane 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. Mulrane requested a copy of: 1. RFI Response from Quincy Center TOD Partners (Atlantic/Buzzuto) to Quincy Center Station RFI; 2. RFP response from Quincy Center TOD Partners (Atlantic/Buzzuto) to Quincy Center Station RFP issued on August 18, 2017; 3. Documents relating to execution of designation of Quincy Center TOD Partners (Atlantic/Buzzuto) as developer for Quincy Center Station following FMCB's board vote on or after December 4, 2017. Requests and responses With its initial May 7, 2018 response, the MBTA provided Mr. Mulrane with the RFI response and RFP response from TOD Partners (Atlantic/Buzzuto); Mr. Mulrane's Requests 1 and 2. However, the MBTA informed Mr. Mulrane in this initial response regarding his April 27th request that the MBTA is withholding documents relating to the designation of TOD Partners under Exemption (d) of the Public Records Law. ih After receipt of the MBTA's May response, Mr. Mulrane sent a May 10th email at 10:25 am to the MBTA, stating: "[t]hank you for providing the RFP response from Quincy Center TOD Partners. Execution of the designation letter was to mark the start of the 180-day due diligence period between TOD Partners and the MBTA . The FMCB approved designation of TOD 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, Esq. SPR18/765 Page 2 June 7, 2018 Partners on December 4, 2017, conditional on Quincy City Council approval. City council approval was given on December 14, 2017. These facts contradict your claim this designation was not finalized ( executed) and therefore are exempt under the deliberative process exemption of Massachusetts Public Records Law. I will be submitting a revised public records request." In a May 23rd email response to Mr. Mulrane's May 10th email, the MBTA provided him with one document that was responsive to his revised request. The MBTA provided Mr. Mulrane with a link to the document on its website, labeled "[Q]uincy Center Transit-Oriented Development." Petitions to the Supervisor for an appeal The MBTA's May 23rd response notes Mr. Mulrane's May 10th revised request. However, Mr. Mulrane did not provide the Supervisor with a copy of his May 10th revised request; he simply stated in his May 10th email sent at 10:25 am that he would be submitting a revised request. Mr. Mulrane is reminded that under the requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the requests were made. See 950 C.M.R. 32.08(1)(g)(l). 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, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). MBTA 's initial May fh response 11 The MBTA's May J1h response to Mr. Mulrane's April 2?1 request indicates that the MBTA is withholding documents relating to the designation of TOD Partners because the

Julie Ciollo, Esq. SPR18/765 Page 3 June 7, 2018 documents are not finalized yet. Therefore, the MBTA cites Exemption (d ) as applicable to withhold the documents. 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, 88 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). The MBTA asserts that the records it is withholding concern an open and ongoing procurement which is not yet finalized. However, it is unclear what type ofresponsive records the MBTA has and how those records are not factual in nature, and how disclosure would taint the deliberative process at this time. It is also unclear how any "inter-agency or intra-agency memoranda, letters or any communications relating to policy positions being developed" by the MBTA can be withheld under Exemption (d). I find that the MBTA has not met its burden of demonstrating that the records can be withheld, in their entirety, as deliberative process or policy making documents pursuant to Exemption ( d). Burden of specificity in responding; duty to segregate The MBTA denied Mr. Mulrane' s request without demonstrating how Exemption (d ) specifically applies to allow MBTA to withhold the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The MBTA merely states that there is an on going procurement process that is not finalized. I find that the MBTA did not meet its burden of demonstrating how any of responsive records, in their entirety, are exempt from disclosure. 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, the MBTA must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10( a).

Julie Ciollo, Esq. SPR18/765 Page4 June 7, 2018 Moreover, the MBTA did not identify the records, categories of records or portions of records in its possession that are responsive to Mr. Mulrane's request. G. L. c. 66, § lO(ii) ( custodian must provide records within its possession, custody or control); see also Reinstein, at 289-90. Under the Public Records Law, a records access officer must also identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the MBTA must identify what records it has in its possession, care and control that are responsive to Mr. Mulrane's request. Conclusion Given that the MBTA did not provide the specificity required in withholding records, in their entirety, as required by statute, the MBTA cannot withhold the records or portions of records. See G. L. c. 66, § lO(b)(iv). Accordingly, the MBTA is hereby ordered to review the records, redact where necessary, and provide the records to Mr. Mulrane 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Ted Mulrane (via email)