Emma Rindlisbacher v. Greater Attleboro Taunton Regional Transit Authority (SPR 20252907)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2025 SPR25/2907 Kylie Araujo Executive Assistant Greater Attleboro Taunton Regional Transit Authority 10 Oak Street Taunton, MA 02780 Dear Ms. Araujo: I have received the petition of Emma Rindlisbacher appealing the response of the Greater Attleboro Taunton Regional Transit Authority (Authority/GATRA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 1, 2025, Ms. Rindlisbacher requested “a copy of what ATU is calling the tentative agreement that was agreed to yesterday.” The Authority responded on October 2, 2025. Unsatisfied with the Authority’s response, Ms. Rindlisbacher petitioned this office, and this appeal, SPR25/2907, was opened as a result. Subsequent to the opening of this appeal, in an email to this office and Ms. Rindlisbacher on October 6, 2025, the Authority provided a further response. 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. 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

Kylie Araujo SPR25/2907 Page 2 October 17, 2025 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 petition, Ms. Rindlisbacher argues the following: GATRA obviously has a copy of this “tentative agreement” with their union since GATRA was posting all these announcements about how the strike has been suspended, so GATRA should release their copy of the tentative agreement. And exemption d does not apply because this record is obviously in the public interest to know. The Authority’s October 2nd and October 6th Responses In its October 2, 2025 response, the Authority explains the following: GATRA does not have any records responsive to your request, as it is not a party to the collective bargaining agreement, although it anticipates being provided a copy upon ratification. Even were GATRA to obtain a copy of the draft agreement, it would be withheld pursuant to Exemption (d) to the Public Records Law, G.L. c. 4, §7(26)(d). Exemption (d) exempts from disclosure those records which relate to the deliberative process of the agency. G.L. c. 4, §7(26)(d). The exemption applies to recommendations on legal and policy matters, including strategy with respect to ongoing collective bargaining. See, e.g., Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237, n.8 (1988). Until such time as the agreement is ratified by the union, disclosure of the agreement would be premature. In its October 6, 2025 response, the Authority further argues the following: GATRA does not have a copy of the tentative agreement between ATU and Kiessling of Attleboro. While we have been apprised as to the status of negotiations, and thus were able to make the public announcements the requester references in her appeal, we simply do not have the document requested, as stated in our original response to this request. Agency Relationship Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378

Kylie Araujo SPR25/2907 Page 3 October 17, 2025 Mass. 281, 289-90 (1979). The Authority is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the information provided in the Authority’s responses, it is unclear whether there is an agency relationship between the Authority and Kiessling of Attleboro. As such, I find the Authority must provide additional information regarding the relationship between it and Kiessling of Attleboro, and the scope of any such relationship, in order to determine whether the Authority has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody or control of the custodian of records at the time of the request. 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). Based on the Authority’s responses, although the Authority refers to the “ongoing collective bargaining” as an ongoing deliberative process, I find the Authority has not established how the record at issue constitutes “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. 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”); City of Madison v. United States Dep’t of Justice,

Kylie Araujo SPR25/2907 Page 4 October 17, 2025 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra- agency” under FOIA exemption 5). The Authority must clarify this. Conclusion Accordingly, the Authority is ordered to provide Ms. Rindlisbacher with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Ms. Rindlisbacher may further appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Emma Rindlisbacher