Joel Lewin v. Massachusetts Department of Transportation (SPR 20253609)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2025 SPR25/3609 Stephen Shorey, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza Boston, MA 02116 Dear Attorney Shorey: I have received the petition of Joel Lewin appealing the response of the Massachusetts Department of Transportation (Department/MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 28, 2025, Mr. Lewin requested: [1] All documents and correspondence, including without limitation, negotiations, between MassDOT and Global concerning or relating to any proposed or actual extension of any lease(s) with respect to the Service Plazas at which Global is presently a tenant[;] [2] Any signed lease extensions between MassDOT and Global with respect to the Service Plazas at which Global is presently a tenant[;] [3] All documents and correspondence, including without limitation, negotiations, between MassDOT and McDonald’s concerning or relating to any proposed or actual extension of any lease(s) with respect to the Service Plazas at which McDonald’s is presently a tenant[;] [4] Any signed lease extensions between MassDOT and McDonald’s with respect to the Service Plazas at which McDonald’s is presently a tenant[;] [5] All documents and correspondence, including without limitation, negotiations, between MassDOT and Gulf concerning or relating to any proposed or actual extension of any lease(s) with respect to the Service Plazas at which Gulf is presently a tenant[;] 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

Stephen Shorey, Esq. SPR25/3609 Page 2 December 19, 2025 [6] Any signed lease extensions between MassDOT and Gulf with respect to the Service Plazas at which Gulf is presently a tenant[.] The Department assigned this request reference number P002438-102825. Previous Appeal This request was the subject of a previous appeal. See SPR25/3367 Determination of the Supervisor of Records (November 26, 2025). In my November 26th determination, I found it was unclear whether the Department provided Mr. Lewin with a response. Subsequently, I learned that the Department provided responses on November 17, 2025 and December 2, 2025. Unsatisfied with the Department’s responses, Mr. Lewin petitioned this office and this appeal, SPR25/3609, was opened as 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. 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. The Department’s November 17th and December 2nd Responses In its November 17, 2025 response, the Department stated, “MassDOT is not in possession of records responsive to categories 1, 2, 4, or 6 of your request.” In addition, the Department cited Exemption (d) of the Public Records Law to withhold records responsive to Items 3 and 5 of the request. In its December 2, 2025 response, the Department expanded upon its Exemption (d) claims to withhold the responsive records.

Stephen Shorey, Esq. SPR25/3609 Page 3 December 19, 2025 Current Appeal In his appeal petition, Mr. Lewin argued that Exemption (d) does not apply to the responsive records because “MassDOT did not contract with these tenants/lessees to provide recommendations or opinions to MassDOT.” 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). Under Exemption (d), the Department stated: Records responsive to categories 3 and 5 are currently exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(d), relating to policy positions being developed by MassDOT… The records requested pertain to ongoing negotiations between MassDOT and its service plaza tenants to extend current lease agreements. Release of these records at this time could taint the deliberative process by revealing bargaining positions, preliminary terms, and MassDOT’s negotiation strategy. This could ultimately undermine MassDOT’s ability to obtain the best possible terms to accomplish its overall goals for service plazas… In this case, the materials withheld under Exemption (d) constitute intra-agency memoranda pursuant to longstanding administrative precedent. The Supervisor of Records has determined that Exemption (d) applies to materials between government entities and their contractors. See SPR95/366 Determinations of The Supervisor of Records (August 14, 1995; August 31, 1995) (finding that exemption (d) applies to government entities “and consultants”). In this case, the ongoing deliberations relate to extending the existing agreement between

Stephen Shorey, Esq. SPR25/3609 Page 4 December 19, 2025 MassDOT and its contractors/consultants for managing and operating Service Plazas pursuant to the Food and Beverage Services Lease Agreement and Fuel Service Facilities Lease Agreement. The deliberative materials are not submitted by a “third-party” and constitute intra-agency memoranda. Therefore, the records are exempt from disclosure pursuant to Exemption (d). The Department is advised that any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Consequently, the Department 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, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, I find the Department has not established how the requested records and correspondence between MassDOT and two of its tenants constitute “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 (2011) (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, 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 Determination 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 Department must clarify these matters. It is additionally uncertain what records the Department possesses that are responsive to the request. 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); 950 C.M.R. 32.06(3)(c)(4). Consequently, the Department must identify the records in its possession that it is withholding under Exemption (d). Conclusion Accordingly, the Department is ordered to provide Mr. Lewin 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. Mr. Lewin may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Stephen Shorey, Esq. SPR25/3609 Page 5 December 19, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Joel Lewin