Matthew Stout v. Massachusetts Department of Transportation (SPR 20240772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 26, 2024 SPR24/0772 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 Matt Stout, of the Boston Globe, 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 February 22, 2024, Mr. Stout requested, “[a] copy of the application, including all appendixes, that MassDOT submitted in 2023 for funding for the Sagamore Bridge project through the National Infrastructure Project Assistance (Mega) grant program and the Infrastructure for Rebuilding America (INFRA) grant program. The Biden-Harris administration announced in January that it was awarding funding to the project through those two programs.” MassDOT responded on March 8, 2024. Unsatisfied with the response, Mr. Stout petitioned this office and this appeal, SPR24/0772, 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. 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 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. SPR24/0772 Page 2 March 26, 2024 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 March 8th Response In its March 8, 2024 response, MassDOT cited Exemption (d) of the Public Records Law to withhold the requested records in their entirety. 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). In its response, MassDOT stated, The requested records relate to a funding application and the overall strategy and policy making for the Sagamore Bridge replacement project, which is ongoing. The requested records represent applications for only a portion of the available funding sources being proposed and sought from the federal government for the Sagamore Bridge project. The records requested are substantially similar and interdependent on an open and pending application under the Bridge Investment Program (“BIP”). The requested records contain detailed information about the proposed project, which is also contained in the pending BIP application. The requested records are not reasonably complete factual reports, because they are part of an application process to fund a policy proposal for an infrastructure project. Changes to the proposal, for example due to insufficient federal funding, would necessitate changes to the information contained in the requested records. Release of these records at this time could taint the ongoing deliberative process

William J. Doyle. Esq. SPR24/0772 Page 3 March 26, 2024 related to the plans and overall funding of the Sagamore Bridge project. As the BIP application is considered by the U.S. Federal Highway Administration (FHWA), information in the BIP application may need to change, which could require information in the requested records to change. Likewise, if the BIP application is denied, then the requested records will likely need to change, as the requested records were submitted based on a proposal that relies in part on funding through the currently pending BIP application. Release of the records in that scenario could make it difficult to deliberate on how to move forward and reimagine the project, given certain information about the plan as currently conceived would be public. In addition, releasing the requested records prior to the completion of the BIP application could risk setting unclear expectations for the media and public with respect to the project. Disclosure at this time could also improperly influence FHWA’s decision because stakeholders could express their disapproval of the application to FHWA prior to its decision, thus affecting the still pending funding application. Based on MassDOT’s response, I find it has not met its burden of specificity to withhold the records, in their entirety, under Exemption (d). MassDOT is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, MassDOT must clarify whether the records contain any factual information that can be segregated. 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). MassDOT must clarify this matter. Conclusion Accordingly, MassDOT is ordered to provide Mr. Stout 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 the response to this office at pre@sec.state.ma.us. Mr. Stout may appeal the substantive nature of MassDOT’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Matt Stout Christopher Smith, Esq.