Steve Guard v. Massachusetts Department of Transportation (SPR 20221678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2022 SPR22/1678 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/MassDOT) 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.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1323 Determination of the Supervisor of Records (June 21, 2022). In my June 21st determination, I ordered the Department to clarify its claims under Exemption (d). Subsequently, the Department responded on July 8, 2022. Unsatisfied with the Department’s response, Attorney Guard further 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. 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. SPR22/1678 Page 2 August 2, 2022 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. Current Appeal In his appeal petition, Attorney Guard objects to the fact that “MassDOT redacted the dollar amounts from the winning bid and cited MGL c. 4, Section 7(26)(d) as the reason for such redaction,” and he requests “that the requested records (unredacted as to dollar amounts) be made public.” The Department’s July 8th Response In its July 8, 2022 response, the Department provides a copy of a “Form B, Bid Form” filled and signed by a private company, and cites Exemption (d) of the Public Records Law for redacting price information from the responsive record. 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. 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 discuss the bidding process for this location. The requested records identify information relative to the amount this bidder made which, if released to the public, could materially affect MassDOT’s ability to obtain the best bidder for the Commonwealth, and could affect [the Department’s] ability to continue to develop policy positions during this ongoing deliberative

William J. Doyle, Esq. SPR22/1678 Page 3 August 2, 2022 process. Based on its response, I find the Department has not met its burden to redact the responsive record pursuant to Exemption (d). Specifically, regardless of whether a deliberative process remains ongoing, the Department has not established that the record at issue constitutes “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). In particular, where the responsive record is a form submitted by a private company as part of a bidding process, the Department has not demonstrated that the record was sent between government entities or consultants. 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). 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. Sincerely, Manza Arthur Supervisor of Records cc: Steven M. Guard, Esq.