Edward Mulrane v. Massachusetts Bay Transportation Authority (SPR 20180911)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 5, 2018 SPR18/911 Julie A. Ciollo, Esq. Assistant General Counsel MBTA Law Department 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, on June 13, 2018, Mr. Mulrane requested the following records: 1) All records since December 4, 2017 pertaining to the redevelopment of Quincy Center Station, including but not limited to the following topics: Bus Plan, Public Subsidies, Structural Analysis, and Design. 2) All records pertaining to the delay in execution of the designation letter between the MBTA and Quincy Center TOD Partners and the delay to the subsequent 180-day due diligence period. 3) All written communication (letters, emails, memos, etc.) since December'4, 2017 between the MBTA and representatives of Atlantic Development, The Buzzuto Group, or joint ventures thereof ( e.g. Quincy Center TOD Partners, North Quincy Partners), including instances where any of these parties are copied in communications. The MBTA responded on June 19, 2018 by denying access to responsive records pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Please note the records at issue in this appeal are similar to those sought in previous appeals. See SPR18/765 Determination of the Supervisor of Records (June 7, 2018); SPR18/844 Determination of the Supervisor of Records (June 20, 2018). In my June 20th determination I found the MBTA had met its burden of specificity in claiming Exemption ( d) to withhold a 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. SPR18/911 Page2 July 5, 2018 contract that is currently in the drafting stage. I also noted that any change in the status of the deliberations may affect the applicability of the exemption. Mr. Mulrane indicates in his current appeal that the June 20th determination "makes it clear that Exemption ( d) of the public record law applies to the draft designation contract between the MBTA and Atlantic/Bozutto prior to finalization. Thank you for this clarification." However, he notes his current appeal pertains to "the MBTA's application of Exemption (d) to *all* responsive records without identifying those records. Furthermore, Ms. Ciollo's response implies that the MBTA would seek to apply the same exemption to communications with non agency parties." 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. The MBTA's June 19th response With respect to certain records responsive to request 1 you indicate "I am advised by the records custodian that no records exist within the MBTA, concerning the specific topics identified in your request. These records are currently planned to arise out of a due diligence period which has not yet begun. Therefore, the records do not yet exist." With respect to request 2 you assert "I am advised by the records custodian that there has been no delay either in the execution of the designation letter, or of the 180-day due period. As stated above, negotiations between the MBTA and Quincy Center TOD Partners are ongoing. Therefore, no records exist which would be responsive to any inquiry as to delays in this process." Please note 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). Notwithstanding the above explanation, the MBTA is also withholding responsive records under Exemption ( d).

Julie A. Ciollo, Esq. SPR18/911 Page 3 July 5, 2018 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 subject to disclosure). The MBTA asserts "[t]o the extent that you are seeking *any* record pertaining to the redevelopment of Quincy Center Station created after December 4, 2017, I am further advised by the records custodian that there are responsive communications. However, these communications concern active and ongoing negotiations between the MBTA and Quincy Center TOD Partners about the yet to be finalized designation letter. Consequently, they are exempt from disclosure pursuant to Massachusetts General Laws ch. 4, sec. 7, clause 26(d)." You note "[i]n this case, the records request concerns open and ongoing contract negotiations. Therefore, those records are being withheld." With respect to request 3 you explain "I am advised by the .MBT A's IT Department that there are approximately 2,500 responsive electronic communications between the MBTA, Atlantic Development and The Bozzuto Group. Given that most if not all of these communications focus on active, ongoing contract negotiations, it will be necessary to review and redact these emails of exempted material." You note that "[g]iven that such a review would take upwards of 60 hours, this request is overly burdensome in the view of the MBTA . Therefore I must ask that you narrow the scope of your request, either with a modified date range, or by adding key words that can be used to focus the scope of the communications." Although the MBTA claims responsive records "concern active and ongoing negotiations between the MBTA and Quincy Center TOD Partners," it is unclear what records it possesses, nor is it clear what policy positions are being developed. The MBTA must identify any records, categories of records or portions of records that it intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based. G. L. c. 66, § lO(b )(iv).

Julie A. Ciollo, Esq. SPR18/91 l Page 4 July 5, 2018 Also, I find the MBTA has not established how all the responsive records are inter agency or intra-agency memoranda or letters as required by Exemption ( d). In particular, the MBTA has not demonstrated that the responsive records were only sent between governmental entities or consultants. See DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is "its source must be a Government agency"); Cty. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not "intra agency" under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). · Further, it is unclear how the records may be withheld in their entirety. The MBTA must determine whether there are any portions of the responsive record that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 1O (a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It should also be reiterated that any information contained in the records that is factual in nature may be subject to disclosure as Exemption ( d) does not apply to such information. Mr. Mulrane and the MBTA are encouraged to communicate in order to facilitate producing records efficiently and affordably. Mr. Mulrane may wish to include applicable time periods or topics. G. L. c. 66, § lO(a)(i). The MBTA must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § 1O (b )(vii) ( an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Given that the MBTA did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the MBTA is ordered to review the report, redact where needed and provide Mr. Mulrane with responsive records, 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. The MBTA may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Julie A. Ciollo, Esq. SPR18/911 Page 5 July 5, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Edward Mulrane