Harry Mattison v. Massachusetts Department of Transportation (SPR 20232918)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2023 SPR23/2918 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Harry Mattison appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 10, 2023, Mr. Mattison requested, “[a]pplication submitted by MassDOT for federal funding through the Reconnecting Communities & Neighborhoods program for the I90 Allston Multimodal Project.” Prior Appeal This request was the subject of a prior appeal. See SPR23/2626 Determination of the Supervisor of Records (November 15, 2023). In my November 15th determination, it was my understanding that MassDOT intended on providing a further response to Mr. Mattison. MassDOT responded on November 1, 2023. Unsatisfied with MassDOT’s response, Mr. Mattison petitioned this office and this appeal, SPR23/2918, 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. SPR23/2918 Page 2 December 18, 2023 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. MassDOT’s November 1st Response In its November 1, 2023 response, MassDOT withheld the requested records pursuant to Exemption (d) of the Public Records Law, in their entirety. Current appeal In his December 4, 2023 appeal, Mr. Mattison asserts, “Exemption D applies only to ‘memoranda or letters relating to policy positions being developed by the agency’. The MassDOT MEGA and Reconnecting Communities grant applications are no longer being developed by the agency. I am not requesting pre-submission, internal drafts of MassDOT’s application. I am requesting the final, non-draft documents that MassDOT submitted to USDOT on or before the August 21, 2023 and September 28, 2023 deadlines for applications ...” 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). With respect to Exemption (d), MassDOT stated, “MassDOT is currently withholding the record under this exemption, as it consists of inter-agency memoranda and/or other documents between MassDOT, City of Boston, and the United States Transportation (USDOT); currently, discussions are ongoing regarding the environmental permitting process. The grant application, as submitted, is only an initial submission describing MassDOT’s proposal and a request for

William J. Doyle. Esq. SPR23/2918 Page 3 December 18, 2023 federal funding based on that proposal. The application does not constitute a ‘reasonably complete factual report’.” MassDOT further opined, The grant application is currently under review by USDOT and may be subject to change based upon their review; in turn, MassDOT has policy matters to deliberate in responding to their input. The release of the application at this time could prejudice MassDOT’s deliberate processes as it relates to this work. In camera inspection In order to facilitate a determination as to the applicability of MassDOT’s claims to withhold the responsive record pursuant to Exemption (d) of the Public Records Law, MassDOT must provide this office with an un-redacted copy of the responsive record for in camera inspection. After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, MassDOT is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay.

William J. Doyle. Esq. SPR23/2918 Page 4 December 18, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Harry Mattison