Susanna Bohme v. Massachusetts Port Authority (SPR 20190473)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2019 SPR19/473 Ashley K. Carvalho, Esq. Legal Counsel Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Attorney Carvalho: I have received the petition of Susanna Bohme appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Bohme requested "a copy of the following materials related to the RFP: 'Boston-Logan International Airport, Remote Baggage Check-In Service,['] issued November 16, 2018[:] • RSVPs to, or a list of attendees at the December 6, 2018 pre-proposal conference • Any materials distributed at the December 6, 2018 pre-proposal conference • All bid materials submitted by the Proposers in response to the RFP: 'Boston Logan International Airport, Remote Baggage Check-In Service."' The Authority acknowledged receipt of the request on February 12, 2019 and provided a subsequent response on February 26, 2019. In the February 26th response the Authority denied access to responsive records under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). 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 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

Ashley K. Carvalho, Esq. SPR19/473 Page 2 March 8, 2019 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, § 1O (b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal Ms. Bohme initially appealed the Authority's lack of substantive response to this request. As discussed above, subsequent to the opening of this appeal, the Authority responded on February 26th by denying access to records under Exemption (d). Ms. Bohme informed this office she objects to this response in a March 6, 2019 email. 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 Authority asserts "[a]s the Remote Baggage Service RFP proposals are in the process of being reviewed, the RFP process is not yet complete and the proposals remain exempt from the Public Records Law pursuant to M.G.L. c. 4, §7(26)(d)." In her March 6th email Ms. Bohme indicates "I believe that neither (26)( d) or (26)(h) applies to the documents requested in 1 and 2. Records in 1 were collected at a meeting for attendees other than agency actors, and Records in 2 were distributed to interested bidders. As we discussed, it seems inaccurate to define these documents as 'intra or inter agency memoranda or letters' exempted under section d or 'proposals and bids to enter into any contract. .. ' exempted under section h."

Ashley K. Carvalho, Esq. SPR19/473 Page 3 March 8, 2019 The Authority has not identified which of the requested records it possesses. See G. L. c. 66, § IO(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. Further, despite the Authority's explanation that RFP proposals are in the process of being reviewed, it has not met its burden to show how all of the responsive records are "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency" as required by Exemption ( d). In addition, the Authority has not established that all of the withheld records constitute recommendations on legal or policy matters and are not purely factual information. See Babets, 403 Mass. at 237 n.8; Envtl., 410 U.S. at 89. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L, c. 66, § IO(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). Conclusion Accordingly, the Authority is ordered to provide Ms. Bohme with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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 p_~c;_:_state.ma. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susanna Bohme