Harry Mattison v. Massachusetts Department of Transportation (SPR 20200182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records . February 7, 2020 SPR20/0182 William J. Doyle, Esq. Records Access Officer Department of Transportation Office of the General Counsel 10 Park Plaza, Suite 3 510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Harry Mattison appealing the response of the Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mattison requested: "all emails and documents sent to I- 90Allston@dot.state.ma.us." On January 29, 2020, MassDOT denied Mr. Mattison's request in its entirety under Exemption ( d) of the Public Records Law. Please note, the MassDOT case number is POOO 107-012120 for this request. As a result of MassDOT's denial, Mr. Mattison petitioned the Supervisor of Records . (Supervisor), and this appeal was opened. In his petition, Mr. Mattison asserts MassDOT cannot use Exemption ( d) to withhold the emails and other documents sent to MassDOT from a non governmental entity because the exemption only applies to inter-agency and/or intra-agency documents. 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, § 1O A( 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, § 1O (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 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

William J. Doyle, Esq. SPR20/0182 Page 2 February 7, 2020 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 rep01is 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 (19.88). 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 January 29th response, you indicate, "MassDOT is withholding the records [Mr. Mattison] [has] requested under this exemption as they pertain to internal policy discussions which have not been completed. Once we have had a chance to review the comments that have been sent to us, as well as the chance to complete our discussions relative to those comments, all of the emails will be released (subject, of course, to any redactions due to applicable exemptions." Burden of specificity; duty tq segregate; duty to identify records MassDOT denied Mr. Mattison's request without providing the requisite supp01i to withhold all the records under Exemption (d). Specifically, it is unclear how the requested emails constitute inter- or intra-agency communications. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. MassDOT did not meet its burden of specificity in demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemption (d). See 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).

William J. Doyle, Esq. SPR20/0182 Page 3 February 7, 2020 Order Accordingly, MassDOT is ordered to provide Mr. Mattison 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Harry Mattison