Jason Rogers v. Massachusetts Bay Transportation Authority (SPR 20241717)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2024 SPR24/1717 Julie Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Jason Rogers, Esq., of J.C. Cannistraro, LLC, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On April 19, 2024, Attorney Rogers requested, “public records relating to MBTA Contract No. R32CN03 – Wellington Maintenance facility (the ‘Project’), including all records relating to the following:” November 28, 2021, MBTA Letter No. 158; June 27, 2022, MBTA issued Change Request No. 41; July 6, 2022, BHD, via Letter No. MBTA-0402; May 30, 2023, BHD, via Letter No. MBTA-0434; July 20, 2023, BHD, via Letter No. MBTA-0434; October 4, 2023, MBTA strainer comments associated with BHD’s Cost Proposal PCO #127. The MBTA provided a response on May 31, 2024. Unsatisfied with the MBTA’s response, Attorney Rogers petitioned this office and this appeal, SPR24/1717, 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). 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

Julie Ciollo, Esq. SPR24/1717 Page 2 June 21, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. See 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. The MBTA’s May 31st Response In its May 31, 2024 response, the MBTA states, “the MBTA is withholding release of the requested records at this time, as they are exempt from disclosure pursuant to Massachusetts General Laws ch. 4, sec. 7, clause 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, § 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 MBTA argues, “[t]he change orders and time impact assessments that are the subject of the records requested are still currently subject to ongoing negotiation between MassDOT and its contractor. Release of these records at this time will taint MassDOT’s deliberative process to develop its position and in turn its ability to negotiate these matters by setting unclear expectations for the public. These records do not represent factually complete reports or studies, but largely consist of correspondence between MassDOT and its contractor in response to a change order request and the associated time impact assessment.”

Julie Ciollo, Esq. SPR24/1717 Page 3 June 21, 2024 Based on the MBTA’s response, I find the MBTA has not met its burden to withhold the responsive records, in their entirety, under Exemption (d). In particular, the MBTA 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”). Additionally, the MBTA has not established that the records at issue constitute “inter- agency or intra-agency memoranda or letters” as required by Exemption (d). In particular, the MBTA 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). The MBTA must clarify this. Further, the MBTA is advised that the Exemptions to the Public Records Law are not blanket in nature. The MBTA must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the MBTA is ordered to provide Attorney Rogers 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. Sincerely, Manza Arthur Supervisor of Records cc: Jason Rogers, Esq.