Grace Ferguson v. Massachusetts Bay Transportation Authority (SPR 20242845)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2024 SPR24/2845 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Grace Ferguson, of the New Bedford Light, 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 September 3, 2024, Ms. Ferguson requested “… all monthly Project Controls reports for South Coast Rail since January 1, 2023.” Prior Appeal This request was the subject of a prior appeal. See SPR24/2701 Determination of the Supervisor of Records (September 30, 2024). In my September 30th determination, the MBTA was ordered to provide Ms. Ferguson with a response to her request. The MBTA responded on October 7, 2024, providing records and withholding additional records. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR24/2845, 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

Julie A. Ciollo, Esq. SPR24/2845 Page 2 October 25, 2024 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. The MBTA’s October 7th Response In its October 7, 2024 response, the MBTA provided records and cited Exemption (d) of the Public Records Law to withhold additional responsive records. Current appeal In her appeal, Ms. Ferguson states, “[the MBTA] wrote in its October 7 response that it was withholding ‘[p]ortions’ of the requested records under [Exemption (d)], but the response did not specify which records or how many records were being withheld… The requested records are project controls reports, which are monthly updates on a construction project’s schedule and costs… Project controls reports are regular status updates about construction projects. They do not relate to policy positions. To the extent that portions of the records do ‘pertain to unresolved and open change orders and construction estimates for the South Coast Rail Project,’ the MBTA has not demonstrated that discussion of these matters constitutes discussion of a policy position. Furthermore… Project controls reports fall into the category of reasonably completed factual studies or reports. Therefore, the exemption does not apply to the requested records. The MBTA should release them 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).

Julie A. Ciollo, Esq. SPR24/2845 Page 3 October 25, 2024 Under Exemption (d), the MBTA stated, “[p]lease be advised that [Ms. Ferguson’s] public records request seeks information that is exempt from disclosure under [Exemption (d)]… Portions of the responsive records pertain to unresolved and open change orders and construction estimates for the South Coast Rail Project, which is an ongoing process. Public release at this time could materially affect the MBTA’s ability to continue to develop its policy positions during this ongoing deliberative process. Therefore, those records are being withheld.” Based on the MBTA’s response, I find it has not met its burden of specificity to withhold the records, in their entirety, pursuant to Exemption (d). It is unclear which records are being withheld from disclosure under Exemption (d). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). As such, the MBTA must identify the records in its possession that it is withholding under Exemption (d). The MBTA 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, the MBTA 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). Further, I find the MBTA has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective 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”); Cty. 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 these matters. Conclusion Accordingly, the MBTA is ordered to provide Ms. Ferguson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

Julie A. Ciollo, Esq. SPR24/2845 Page 4 October 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson