Colleen Boyle v. Massachusetts Bay Transportation Authority (SPR 20192020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records October 16, 2019 SPR19/2020 Julie A. Ciollo, Esq. Assistant General Counsel/Records Access Officer Massachusetts Bay Transportation 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 MBTA under [MBTA Contract No. E22CN07] to date by GLX Constructors (the DB Entity)." Prior appeal The requested records were the subject of a prior appeal. See SPRl 9/1703 Determination of the Supervisor of Records (Supervisor) (August 27, 2019). In your August 3th 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." As a result, Ms. Boyle petitioned the Supervisor, and SPRl 9/1703 was opened. In my August 27th determination, I found the MBTA did not meet its burden of specificity in withholding the responsive construction progress schedules under Exemption (d) of the Public Records Law. I ordered the MBTA to provide Ms. Boyle with a response to the request. In the alternative to a fmiher response, I offered the MBTA the opportunity to submit a sample of these particular records for in camera inspection by this office so that a final determination could be rendered on the exemption claim. The MBT A choose to provide a further response on September 6th. In its September 6th response the MBTA continues to withhold the construction project's progress schedules pursuant to Exemption ( d), and offered to provide Ms. Boyle with a list of the 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. SPR19/2020 Page 2 October 16, 2019 completed activities of the project. As a result, Ms. Boyle petitioned the Supervisor, and the current appeal was opened. Tlte 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) (written response must "identify any records, categories ofrecords or portions ofrecords 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) 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). 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 part 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."

Julie A. Ciollo, Esq. SPR19/2020 Page 3 October 16, 2019 In its September 6th response pertaining to its Exemption ( d) claim to withhold the project progress schedules in their entirety, the MBTA asserts, " ... as [o]wner of the GLX Project, has a complex contractual relationship with the Design Build contractor, GLX Contractors. Under this relationship, a monthly schedule is · utilized as a cost control document that involves constant and pending discussions, deliberations and determinations. The monthly schedule submittal is an internal document to the project that includes information related to proposed schedule adjustments, change orders, determination/debate of merit and Dispute Board Resolution review documents. The MBTA's ability to deliberate and negotiate conflicts and disputes would be greatly compromised by the release of unapproved and disputed submittals." In camera inspection In order to facilitate a determination as to the public nature of the requested records, as well as the applicability of the MBTA's Exemption (d) claim to withhold the records in their entirety, it is necessary to inspect an un-redacted copy of the documents in question, or a representative sample of the documents. See 950 C.M.R. 32.08(4). After I complete my review of the record(s), I will return the record(s) 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 ce1iainly affect our credibility within the legal community.

Julie A. Ciollo, Esq. SPR19/2020 Page 4 October 16, 2019 Conclusion Accordingly, the MBTA is ordered to provide this office with an un-redacted copy of the records or a representative sample of the responsive records. The MBTA may provide this office with an explanation of its position regarding the applicability of Exemption ( d) to withhold the record from disclosure. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Colleen Boyle