Anne McKinnon v. Boston Planning & Development Agency (SPR 20250786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2025 SPR25/0786 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 appeals and in camera review This request was the subject of prior appeals and an in camera review. See SPR24/3358 Determination of the Supervisor of Records (December 23, 2024) and SPR25/0168 Determination of the Supervisor of Records (February 3, 2025 and March 7, 2025). In my March 7th determination, I found that although portions of the records may fall under Exemption (d), the Agency had not met its burden to show that the entirety of the withheld records are exempt under Exemption (d) of the Public Records Law. The Agency provided a response on March 20, 2025. Unsatisfied with the response, Ms. McKinnon petitioned this office and this appeal, SPR25/0786, 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 SPR25/0786 Page 2 April 4, 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. 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. Current appeal In her appeal, Ms. McKinnon states, “[t]he withheld documents that seem to be those with City department notes on them and the argument BPDA uses now is no different from before ‘the annotations shared among various City staff members are protected from disclosure under the deliberative process exemption’... I maintain that these are factual reports which are reasonably complete that happen to contain notes and opinions. These don’t qualify for Exemption (d).” The Agency’s March 20th Response In its March 20, 2025 response, the Agency cited Exemption (d) of the Public Records Law to redact certain responsive records. 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).

Danielle Cournoyer SPR25/0786 Page 3 April 4, 2025 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: Attached are the records released to Ms. McKinnon per the Supervisor of Records determination made March 7, 2025. They include all records originally withheld in the Planning department’s response to Ms. McKinnon’s public records request on December 11, 2024. In following with the Supervisor of Records determination, the Planning Department has exercised one exemption: The Planning Department has redacted (2) working TAPA Exhibits Drafts based on the Deliberative Process Exemption. Various annotations made to the TAPA Exhibits Drafts were redacted because they include comments and edits shared internally among 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 annotations shared among various City staff members are protected from disclosure under the deliberative process exemption. Upon review and as a result of the prior in camera review, I find that the Agency has met its burden to show that the redaction of the various annotations made to the TAPA Exhibits drafts are exempt under Exemption (d) of the Public Records Law. Conclusion Accordingly, this administration appeal is now closed. Please be advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Anne McKinnon