Steve Guard v. Massachusetts Department of Transportation (SPR 20221323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2022 SPR22/1323 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Attorney Steven M. Guard appealing the response of the 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, 2022, Attorney Guard requested “copies of public records of the winning bid from outfront media for the MassDOT outdoor advertising opportunity along Route 3 southbound, in Rockland, Massachusetts.” The Department responded on March 31, 2022, citing Exemption (d) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(d). Unsatisfied with the Department’s response, Attorney Guard appealed, and this case 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 agency or municipality 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. Att’y 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

William J. Doyle, Esq. SPR22/1323 Page 2 June 21, 2022 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. Current Appeal In his appeal petition, Attorney Guard contends the following: It has been more than a year since the RFP and the Massachusetts Office of Outdoor Advertising award of the bid to Outfront Media. Outfront Media was not awarded a Host Community Agreement by the Town of Rockland. The Town of Rockland’s billboard bylaw allows for only one billboard in the town. The selectboard of Rockland denied Outfront Media’s application for a Host Community Agreement for the state owned and MassDOT Office of Outdoor Advertising controlled site and awarded the only Host Community Agreement allowed in town to an unrelated entity at a different site within the Town’s billboard overlay district. The denial suggests that the reasons therefor are due to ongoing negotiations of the final terms and conditions of the RFP or the winning bid. This is simply not the case as stated above. The MassDOT Office of Outdoor Advertising site was not selected by the town nor was Outfront Media and as such the winning bidder, and the entire RFP for that matter, no longer have any opportunity to achieve a Host Community Agreement in Rockland which is the first step to billboard approval. There is nothing left to negotiate. The Department’s March 31st Response In its March 31, 2022 response, the Department cites Exemption (d) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(d). 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,

William J. Doyle, Esq. SPR22/1323 Page 3 June 21, 2022 § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters ----------------------- used in the development of government policy are subject to disclosure). Under Exemption (d), the Department argues the following: MassDOT continues to negotiate the final terms and conditions. The requested records identify information which, if released to the public, could materially affect MassDOT’s ability to negotiate, and could affect [its] ability to continue to develop policy positions during this ongoing deliberative process. Once that process has been completed, [Attorney Guard] may make a new request and [MassDOT] will be able to provide any public records not subject to an applicable exemption and/or privilege. Based on the Department’s response, and the information provided in Attorney Guard’s appeal, it is unclear what deliberative process the responsive records relate to, nor how such a process remains ongoing. 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 Prot. 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”); City 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. Further, that any information contained in the responsive 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). Conclusion Accordingly, the Department is ordered to provide Attorney Guard with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

William J. Doyle, Esq. SPR22/1323 Page 4 June 21, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven M. Guard, Esq.