Jason Rogers v. Massachusetts Bay Transportation Authority (SPR 20241948)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2024 SPR24/1948 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/1717 Determination of the Supervisor of Records (June 21, 2024). In my June 21st Determination, I ordered the MBTA to provide Mr. Rogers with a response to his request. The MBTA responded on July 9, 2024, denying responsive records under Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). Unsatisfied with MBTA’s response, Mr. Rogers appealed, and this case, SPR24/1948, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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. SPR24/1948 Page 2 July 23, 2024 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 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. 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 July 9th Response In its July 9, 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) is intended to avoid the premature release of materials that could taint an ongoing deliberative process.” 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:

Julie Ciollo, Esq. SPR24/1948 Page 3 July 23, 2024 [T]he records in question relate to change orders submitted to the MBTA by its contractor. When a contractor submits materials seeking to change the scope or cost of a contract, the MBTA must accept the change order before it is executed and comes into effect. The MBTA does not always accept the analysis presented in the change order, which begins a negotiation process between the MBTA and its contractor. This negotiation requires the MBTA to deliberate policy determinations among MBTA personnel and with its contractor. The materials submitted by the contractor in support of a change order constitute intra-agency memoranda. The contractor is engaged by the MBTA to conduct certain construction work on its behalf. As a result, the materials created by the contractor for the MBTA to consider its change order are not submitted by an independent third-party and are therefore intra-agency memoranda. The requested records do not constitute reasonably complete factual reports. The records in question represent a portion of communications between the MBTA and its contractor to resolve the question of how and to what extent a change order is warranted. To the extent that the records contain factual information, that information is non-segregable without rending the records meaningless. The records requested are still subject to ongoing negotiation between MBTA and its contractor. Release of these records at this time will taint MBTA deliberative process to develop its position and in turn its ability to negotiate these matters by setting unclear expectations for the public and subcontractors. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (d) claims made by the MBTA to withhold responsive records, the MBTA must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the MBTA’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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).

Julie Ciollo, Esq. SPR24/1948 Page 4 July 23, 2024 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, the MBTA is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Jason Rogers, Esq.