Colman Herman v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20181683)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Szrpewisor of Records November 27,20 18 SPR1811683 Julie Ciollo, Esq. Office of the General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 39 10 Boston, MA 02 1 16 Dear Attorney Ciollo: I have received the petition of Colman Herman appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 8,2018, Mr. Herman requested ". . . hard and electronic copies of all factual studies and/or reports dealing with the Mattapan trolley line prepared by the CH2M Hill company and/or MBTA since 2016." Previous appeal; reconsideration The requested record was the subject of a previous appeal and subsequent reconsideration. See SPR1811295 Determinations of the Supervisor of Records (September 28, 201 8 and October 18.20 18). In my October 18 thd etermination, I declined to reverse my findings in the September 28t" determination, which found that the MBTA had met its burden in responding to the public records request, indicating that it possesses no responsive records. Following the October 1g t1' determination, there were several correspondences between Mr. Herman and representatives from the MBTA. In an email dated November 9,2018 , a representative from the MBTA indicated that the MBTA is in possession of responsive records. However, the records are being withheld pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, 5 7(26)(d). Unsatisfied with the MBTA's response, Mr. Herman petitioned this office and this appeal, SPR1811683, was opened as a result. 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, 5 10A(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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. Page 2 November 27,20 18 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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 5 11 (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 faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The MBTA's November 9'" response In its November 9,2018 response, the MBTA indicated that at the time of Mr. Herman's public records request, "[it] was not in possession of the complete deliverables. Later in the summer, the [MBTA] received the deliverables . . ." The MBTA indicated that ". . . the deliverables received this year will not be released at this time" pursuant to Exemption (d). 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 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'~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 malting materials. G. L. c. 4, 5 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 is advised that Exemption (d) applies only to recommendations on legal and policy matters. Based on the MBTA's response, it is unclear how the responsive records constitute recommendations on legal and policy matters or how disclosure would taint the

Julie Ciollo, Esq. Page 3 November 27,20 18 deliberative process. Also, the MBTA has not established how the requested records constitute "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 DO1 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"); Ctv. of Madison v. United States Dep't of Justice, 641 F.2d 1036, 1040 (1 st Cir. 1981 ) (finding that documents from a private party are not "intra- agency" under FOIA exemption 5); SPR951336 Determinations of the Supervisor of Records (August 14, 1995; August 3 1, 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, the MBTA is advised that Exemption (d), as stated above, "is limited to recommendations on legal and policy matters." As such, "reasonably completed factual studies or reports in which the development of such policy positions has been or may be based," is subject to disclosure as Exemption (d) does not apply to such information. Consequently, based on the MBTA's response, it is unclear whether the deliverables contain factual reports. Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, 5 lO(a); 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). Based on the foregoing, I find the MBTA has not established how the records at issue can be withheld, in their entirety, under Exemption (d) of the Public Records Law. Conclusion Given that the MBTA did not meet its burden to explain how an exemption applies to the entire records, the requested records may not be withheld. Accordingly, the MBTA is ordered to review the records, redact where necessary, and provide Mr. Herman 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. Sincerely, u Rebecca S. Murray Supervisor of Records cc: Colman Herman