Karen G. Courtney v. Massachusetts Department of Transportation (SPR 20212015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2021 SPR21/2015 Stephen Shorey, Esq. Senior Counsel Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Shorey: I have received the petition of Karen G. Courtney 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). Specifically, Ms. Courtney requested, “all records relative to the CTA final evaluation submitted to DCAMM. Please include any correspondence relative to this evaluation. From February 1, 2021 to May 12, 2021.” The Department provided a response on August 5, 2021. Unsatisfied with the Department’s response, Ms. Courtney petitioned this office and this appeal, SPR21/2015, 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

Stephen Shorey, Esq. SPR21/2015 Page 2 July 2, 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 August 5th response In its August 5, 2021 response, the Department stated the “public records request seeks information that is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(d), which applies to inter-agency or inter-agency memoranda or letters relating to policy positions being developed by the agency.” 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 August 5th response, Department explained the “responsive records constitute inter- agency or inter-agency memoranda or letters and include internal correspondence, as well as communications between either MassDOT personnel, MassDOT contractors, or another state agency. The records pertain to ongoing deliberations surrounding the final evaluation in question. In particular, District 3 staff has not finalized what it considers to be ‘the CTA final evaluation;’ instead, MassDOT continues to work with and evaluate this contractor. Disclosing responsive records at this time would hinder policy positions being developed by MassDOT, i.e., the objective evaluation of this contractor, because it would prematurely provide insight into MassDOT’s evaluative process.” Based on the Department’s August 5th response, 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

Stephen Shorey, Esq. SPR21/2015 Page 3 July 2, 2021 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). Further, I find the Department must clarify whether the withheld portions of the records contain any factual information that can be segregated from the responsive records, as Exemption (d) does not apply to such information. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 further clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Courtney 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: Karen G. Courtney