Edward Mulrane v. Massachusetts Bay Transportation Authority (SPR 20180844)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 20, 2018 SPRlS/844 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 responses of the Massachusetts Bay Transportation Authority (MBTA) to two requests for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically on May 10, 2018, Mr. Mulrane requested a copy of: • All documents and presentations that are factual and reasonably complete - including inferences drawn from such - pertaining to the MB TA/Quincy Center TOD Partners 180- day due diligence period, related - but not limited to - the following milestone topics presented at the December 4, 2017 Fiscal & Management Control Board (Board) meeting: (1) Bus Plan; (2) Public Subsidies; (3) Structural Analysis; and (4) Design. The MBTA's May 23rd response provided Mr. Mulrane with a link to one responsive record available on the MBTA's website. This document is labeled, "Quincy Center Transit Oriented Development." Mr. Mulrane petitioned the Supervisor of Records (Supervisor) regarding this response. In his petition, Mr. Mulrane indicated that he is seeking records of what has transpired since December 2017, in particular, records pertaining to the proceedings of the due diligence period. As a result, the current appeal was opened. In your June 12th supplemental response to the May 1 oth request, you explain that the MBTA provided Mr. Mulrane with a copy of the Board's presentation that addressed the due diligence period stated in the request. Your response to Mr. Mulrane stated, "[i]n further consultation with the records custodians, I am advised that the 180-day due diligence period has not yet begun, because the execution of designation is not yet complete. As stated on [P]age 8 of the document provided to you, ' [u ]pon execution of designation, 180 day due diligence will begin for developer with MBTA review.' Therefore, since no execution of designation has taken 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. SPR18/844 Page 2 June 20, 2018 place, documents that may be generated out of and about the due diligence period, do not yet exist." Under the Public Records Law, the MBTA is not required to create a record in response to a public records request. See G. L. c. 66, § 6A( d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). Given that the MBTA has no further records responsive to Mr. Mulrane's May 10th request, and no duty to create records, I find that Mr. Mulrane's appeal relating to this matter is resolved. Previous appeal-SPR18/765 (April 27, 2018 request) Specifically on April 27, 2018, Mulrane' s requested a copy of: 1. RPI Response from Quincy Center TOD Partners (Atlantic/Buzzuto) to Quincy Center Station RPI; 2. RPP response from Quincy Center TOD Partners (Atlantic/Buzzuto) to Quincy Center Station RPP issued on August 18, 2017; and 3. Documents relating to execution of designation of Quincy Center Station following FMCB's board vote on or after December 4, 2017. The April 2ih requests were the subject of a previous appeal. See SPRl 8/765 Determination of the Supervisor of Records (Supervisor) (June 7, 2018). In my June ih ih determination, I noted that in its initial May response the MBTA provided Mr. Mulrane with the RPI response and RPP response from TOD Partners (Atlantic/Buzzuto); Mr. Mulrane's Requests 1 and 2. However, the MBTA also informed Mr. Mulrane that it is withholding a record or records pursuant to Exemption (d) of the Public Records Law; Mr. Mulrane's Request 3. In my June ih determination, I found that MBTA did not meet its burden of specificity in claiming Exemption (d) to withhold any records responsive to Request 3. MBTA 's June lilt supplemental response regarding Request Number 3 On June 12, 2018, the MBTA provided Mr. Mulrane with a supplemental response regarding its Exemption (d) claim to withhold Mr. Mulrane's April 2ih Request 3 for "the documents relating to execution of designation of Quincy Center Station following FMCB' s board vote on or after December 4, 2017." 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, § IOA(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).

Julie Ciollo, Esq. SPR18/844 Page 3 June 20, 2018 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, § 1O (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). 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). ih In your June 1 response you state, "I am advised that the execution of designation is a contract between the MBTA and TOD Partners (Atlantic Bozzuto) that is still in the drafting stage and not finalized or signed. At any time prior to finalization, the terms of this contract can change; therefore the entirety of the designation is protected from disclosure under Exemption (d) to the Public Records Law." During a conversation regarding this appeal, you explained to a Public Records Division attorney that the parties are still in the midst of negotiating terms and conditions, and nothing has been finalized. The MBTA posits that if the un-finalized version is disclosed before the parties have agreed to the full contract terms and conditions, public scrutiny may taint the process. It is my understanding that the MBTA intends to publicly disclose the contract once finalized and signed by the parties. With its June lih response and the aforementioned information obtained in a conversation with this office, I find that the MBTA has met its burden of specificity in claiming

Julie Ciollo, Esq. SPR18/844 Page 4 June 20, 2018 Exemption ( d) to withhold contract that is currently in the drafting stage. Please note, any change in the status of the deliberations may affect the applicability of the exemption. Conclusion Accordingly, given the MBTA has no further records responsive to Mr. Mulrane's April 2ih response, and has met its burden of specificity in withholding the draft version of the contract until finalized under Exemption ( d), I consider both the previous and current appeal closed. Sincerely, {JJ);eUA~ Rebecca S. Murray Supervisor of Records cc: Edward Mulrane