Lynne Rudnicki v. Massachusetts Department of Transportation (SPR 20211121)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2021 SPR21/1121 Ulysses Jacks, Esq. Senior Counsel Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Jacks: I have received the petition of Lynne Rudnicki appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 30, 2021, Ms. Rudnicki requested “[i]n reference to MassDOT project #608095, I would like copies of the plans and various revisions from conception to now including but not limited to various alternatives configurations of intersections and roadways whether selected or not.” The Department provided a response on April 14, 2021, denying access to responsive records pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the Department’s responses, Ms. Rudnicki petitioned this office and SPR21/1121 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, § 10A(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, § 10(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 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. 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

Ulysses Jacks, Esq. SPR21/1121 Page 2 May 14, 2021 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s April 14th response In its April 14th response, the Department states “your public records request seeks information that is exempt from disclosure at this time under Massachusetts General Laws Chapter 4, Section 7(26)(d), relating to policy positions being developed by MassDOT; this exemption is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT is withholding the records you have requested, in whole or in part, under this exemption as they pertain to negotiations and/or discussions which have not been completed.” 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 its response, the Department indicates “Project No.608095 is still in the 25% design stage with deliberations still being pursued in anticipated of the forthcoming 25% Design Hearing where the abutters and general public can express their views regarding the project… [o]nce the public hearing has been completed, you may make a new request for these records.” In her appeal, Ms. Rudnicki contends “[t]hese records were shared outside of intra- agency and should no longer be exempt as cited. They were shared with various people in the Town of North Andover, a consultant for a private developer Trinity Financial, Trinity Financial, Merrimack College and others...[s]ome of the plans requested are part of the documents that VHB even provided to MassDOT, so would not qualify as intra-agency work product.”

Ulysses Jacks, Esq. SPR21/1121 Page 3 May 14, 2021 Based on the Department’s responses, I find it has not met its burden of specificity to withhold the records in their entirety pursuant to Exemption (d). It is unclear which records are being withheld from disclosure under Exemption (d). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). The Department is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, I find the Department has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI 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”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Rudnicki with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Lynne Rudnicki