Colleen Boyle v. Massachusetts Bay Transportation Authority (SPR 20191703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2019 SPR19/1703 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transp01iation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Colleen Boyle appealing the response of the Massachusetts Bay Transp01iation Authority (MBTA) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, in July 2019, Ms. Boyle requested: "copies of all monthly Progress Schedule Submittals submitted to the MBT A under [MBTA Contract No. E22CN07] to date by GLX Constructors (the DB Entity)." In your August 8th response, you indicated, "I am advised by the records custodian that the monthly submittals are internal working documents that contain information not suitable for public release. However, the GLX Deputy Program Manager of Stakeholder Engagement has offered to speak with [Ms. Boyle] if [she] would like some additional information that *is* suitable for public release." .O n August 9t\ Ms. Boyle sent an email, stating, "I would like more information about why the release of these documents is being denied. Please provide more information about what exemption under the Public Records Law is being claimed to deny release of these records." The MBTA claimed, on August 16th that the monthly progress schedules are withheld under Exemption (d) of the Public Records Law. As a result, Ms.Boyle petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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. SPR19/1703 Page 2 August 27, 2019 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). 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. 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 repmis 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 fo 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). In your August 16th response, you indicate, "[t]he MBTA uses the information contained within the project schedules as part of an ongoing deliberative process as paii of the Green Line Extension, the release of which could materially affect the MBTA's ability to continue to develop its policy positions during this ongoing deliberative process. Therefore, those records are being withheld." I find that the MBTA has not met its burden of specificity in demonstrating that a project schedule is a recommendation on legal and policy matters, and not factual in nature. Neither has the MBTA demonstrated how disclosure of project schedules that must be submitted to the

Julie A. Ciollo, Esq. SPR19/l 703 Page 3 August 27, 2019 MBTA on a monthly basis by the construction company will taint an ongoing deliberative process. Conclusion Accordingly, the MBTA is ordered to provide Ms. Boyle with a response to the request, 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 pre@sec.state.ma.us. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the Exemption ( d) claim made by the MBTA to withhold the project schedules in their entirety, the MBTA may provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4 ). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass, 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The MBTA may provide this office with an explanation of its position regarding the applicability of Exemption ( d) to withhold responsive records from disclosure or provide records for in camera inspection. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Julie A. Ciollo, Esq. SPR19/1703 Page4 August 27, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colleen Boyle