Anne McKinnon v. Boston Planning & Development Agency (SPR 20250168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2025 SPR25/0168 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. McKinnon 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. Prior Appeal This request was the subject of a prior appeal. See SPR24/3358 Determination of the Supervisor of Records (December 23, 2024). In my December 23rd determination, I found that the Agency had not met its burden to withhold records under Exemption (d) of the Public Records Law. The Agency responded on December 24, 2024, citing Exemption (d) of the Public Records Law to withhold records. Unsatisfied with the response, Ms. McKinnon petitioned this office and this appeal, SPR25/0168, was opened as a result. 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 SPR25/0168 Page 2 February 3, 2025 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 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 24th Response In its December 24, 2024 response, the Agency cited Exemption (d) of the Public Records Law to withhold responsive records. Current appeal In her appeal, Ms. McKinnon states the following: [1.] The TAPA (draft and final) are factual reports describing its commitments. Documents from third parties are not exempt. [2.] Comments by BTD and others are based on the City’s regulations and are not policy related. [3.] Exhibits (plans, signal timing information, etc.) are clearly factual and not subject to the exemption. [4.] The proponent and its consultants do not make policy; therefore, material they sent to the City agencies are not exempt. [5.] Memos and emails from City agencies on the TAPA are not policy since the TAPA is merely a codification of commitments made to the BPDA Board in the Board Summary provided to Board members and the public. 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

Danielle Cournoyer SPR25/0168 Page 3 February 3, 2025 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 Agency stated the following: [t]his search produced (32) emails and related documents of which (16) were provided to Ms. McKinnon on December 11, 2024. The Planning Department withheld (12) emails (2) working TAPA Exhibits Drafts, (1) memo, and (1) presentation based on the Deliberative Process Exemption. The identified TAPA Exhibits Drafts were withheld along with inter/intra agency communications as they are annotated working drafts that include comments and edits shared between various City Departments. As the City’s internal planning for the renovated White Stadium is an ongoing inter-departmental endeavor involving several City departments contributing to the Transportation Action Plan, it is the judgment of the Planning Department that the document drafts shared between department staff with accompanying annotations, are protected from disclosure under the deliberative process exemption. As part of the records released to her, Ms. McKinnon received copies of the clean unannotated version of the Transportation Access Plan and its exhibits provided to the City by its consultants on the project. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (d) claim made by the Agency to withhold the responsive records, the Agency must provide this office with an un-redacted copy of the 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 Agency’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.

Danielle Cournoyer SPR25/0168 Page 4 February 3, 2025 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). 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 Agency 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: Anne McKinnon