Alexander R. Keir v. Pioneer Valley Transit Authority (SPR 20222432)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2022 SPR22/2432 Sandra Sheehan Records Access Officer Pioneer Valley Transit Authority 2808 Main Street Springfield, MA 01107 Dear Ms. Sheehan: I have received the petition of Alexander R. Keir, Esq., of Dunn & Phillips, P.C., appealing the response of the Pioneer Valley Transit Authority (Authority) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 19, 2022, Attorney Keir requested, “[a]ny and all dashcam/onboard video from the . . . bus on November 4, 2021, between 6:30 a.m. and 7:30 a.m.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2005 Determination of the Supervisor of Records (September 14, 2022). In my September 14th determination, I found that the Authority intended on providing a further response and closed the appeal. On September 19, 2022, the Authority responded. Unsatisfied with the Authority’s response, Attorney Keir petitioned this office and this appeal, SPR22/2432, 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 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

Sandra Sheehan SPR22/2432 Page 2 November 9, 2022 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 current appeal, Attorney Keir claimed that the Authority did not meet their burden to withhold the requested record in its entirety. The Authority’s September 19th response In the Authority’s September 19, 2022 response, it indicated that it was withholding the requested records under Exemption (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, § 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). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its response, the Authority states, “[i]t is our position that the requested video is privileged work produce and protected from disclosure under the public records statute.” The

Sandra Sheehan SPR22/2432 Page 3 November 9, 2022 Authority further states, “…we believe work produce is protected under the ‘Policy Deliberation’ exemption M.G.L. c. 4 § 7 ‘Opinion work product was prepared in anticipation of litigation.’” The Authority concludes stating, “[t]he ‘policy deliberation’ exemption exempts from disclosure ‘interagency or interagency memoranda or letters relating to policy position being developed by the agency…’” The Authority concludes stating, “[j]ohn DaRosa v. City of New Bedford, 471 Mass. 466, 450-51 (2015) supports our position.” Based on the Authority’s response, I find the Authority has not met its burden to withhold the requested record in its entirety pursuant to Exemption (d). In particular, the Authority has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Further, it is unclear how disclosure of the record would taint an ongoing deliberative process. Additionally, it is uncertain how the “dashcam/onboard video” is a “privileged work produce” that can be withheld from disclosure. The Authority must clarify these matters. Conclusion Accordingly, the Authority is ordered to provide Attorney Keir 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, Manza Arthur Supervisor of Records cc: Alexander R. Keir, Esq.