Anne McKinnon v. Boston Planning & Development Agency (SPR 20243358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 23, 2024 SPR24/3358 Danielle Cournoyer Public Records Specialist Boston Planning and Development Agency 1 City Hall Square, Floor 9 Boston, MA 02201 Dear Ms. Cournoyer: I have received the petition of Anne McKinnon appealing the response of the Boston Planning and Development Agency (Agency) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 4, 2024, Ms. Ferguson requested the following: Communications that occurred at any time or from time to time in the period July 5, 2024, and November 4, 2024, concerning proposed White Stadium project Transportation Access Plan Agreement or TAPA (emails, memoranda, reports, Powerpoint presentations, summaries of TAPA, etc.) between and from any representative of the Boston Planning and Development Agency and the Boston Transportation Dept. Boston Unity Soccer and its consultants, Stantec and [a named individual]. The requested communications include outlines, draft, preliminary, and “sample” Transportation Access Plan Agreement documents. The MBTA responded on December 11, 2024, providing records and withholding additional records. Unsatisfied with the response, Ms. McKinnon petitioned this office and this appeal, SPR24/3358, 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

Danielle Cournoyer SPR24/3358 Page 2 December 23, 2024 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 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 Agency’s December 11th Response In its December 11, 2024 response, the Agency provided records and cited Exemption (d) of the Public Records Law to withhold additional responsive records. Current appeal In her appeal, Ms. McKinnon states, “[f]actual 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. Only portions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process are exempt from mandatory disclosure. [The Agency] sent the materials I requested up until around mid-September. These materials are identical to those withheld… Further, communications from a consultant are factual and not policy making materials as consultants do not make policy, the City does. Finally, it is not clear how [the Agency] can claim release of the materials would taint the ‘deliberative process.’ This is not a lawsuit or a public process--City agencies are deliberating with themselves (several different agencies).” 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).

Danielle Cournoyer SPR24/3358 Page 3 December 23, 2024 Under Exemption (d), the Agency stated, “[w]e have withheld (12) emails (2) working TAPA Exhibits Drafts, (1) memo, and (1) presentation based on the Deliberative Process Exemption. The Deliberative Process Exemption is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process that are contained within inter-agency or intraagency memoranda or letters. The City’s internal planning around transportation and parking for the renovated White Stadium is ongoing and, as such, any and all documents concerning the City’s ongoing internal planning are protected from disclosure under the deliberative process exemption.” The Agency 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 Agency 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). Also, the Agency did not provide any supporting information to demonstrate how disclosure of the records would taint any ongoing deliberative process. Further, I find the Agency 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 Agency must clarify these matters. Conclusion Accordingly, the Agency is ordered to provide Ms. McKinnon 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. Sincerely, Manza Arthur Supervisor of Records cc: Anne McKinnon