Moore-Carrillo, Jaime v. Massachusetts Bay Transportation Authority (SPR 20260648)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2026 SPR26/0648 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Lucas, Uhl, Esq., of Boston Globe Media Partners, LLC, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2026, Jaime Moore-Carrillo, of the Boston Globe, requested “…a copy of the Request for Proposals (RFP) for the new contract to manage, operate and maintain the MBTA’s Commuter Rail service. The MBTA issued this RFP to three bidding teams in December 2025.” The MBTA responded on February 10, 2026. Unsatisfied with the response, Attorney Uhl petitioned this office and this appeal, SPR26/0648, 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). 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

Julie A. Ciollo, Esq. SPR26/0648 Page 2 March 12, 2026 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 his appeal, Attorney Uhl asserts as follows: … the requested record cannot qualify for Exemption (d) protection because Exemption (d) only applies to inter-agency or intra-agency memoranda or letters. Here, MassDOT sent an RFP to private, third party “bidder teams,” not to public employees within MassDOT or to another public agency. . . . Thus, material prepared for and shared with private parties cannot qualify for protection from disclosure under Exemption (d). Moreover, by the very definition of a “Request for Proposal,” these private, third- party bidder teams received the RFP before any were contracted to manage, operate or maintain the MassDOT’s Commuter Rail service. As such, receipt of the RFP does not equivalate to the bidder teams’ performance of essential government functions so as to qualify as an “agency” for the purposes of the public records law. Additionally, MassDOT has failed to explain how an RFP qualifies as memoranda or letters relating to a policy or legal position. Exemption (d) is meant to protect discussions concerning policy opinions and decisions, not the facts on which they rely or mere requests for information from private parties. . . . Finally, it is worth noting that the Request does not seek any information provided by, or communications from, the bidder teams. Mr. Moore-Carrillo merely seeks the RFP as it was sent to private parties. The MBTA’s February 10th Response In its February 10, 2026 response, the MBTA cited Exemption (d) of the Public Records Law to withhold the requested records in their entirety. 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).

Julie A. Ciollo, Esq. SPR26/0648 Page 3 March 12, 2026 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). In its response, the MBTA stated the following: Please be advised that the MBTA is withholding release of the requested Request for Proposals (RFP), as it is exempt from disclosure pursuant to Massachusetts General Laws ch. 4, sec. 7, clause 26(d). Exemption (d) is intended to avoid the premature release of materials that could taint an ongoing deliberative process. Therefore, its application applies to recommendations and discussions on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237, n.8 (1988). The MBTA issued the initial RFP to three shortlisted bidder teams, only after they all signed NDAs. The MBTA and the three teams are now engaged in a deliberative process whereby the bidders will carry out due diligence, ask clarification questions and identify areas for improving value to the Commonwealth while still in competition. The RFP includes proposals specifically for comment. Consequently, these proposals will change as the MBTA engages with each team and receives feedback and recommendations from them. Given the above circumstances, public release of the RFP would materially affect the MBTA’s ability to engage with the three shortlisted teams, negatively impact competition, and influence the MBTA’s ability to continue to develop its policy positions during this ongoing deliberative process. Therefore, the RFP is being withheld. Based on the MBTA’ response, it is unclear what deliberative process the responsive records relate to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Further, the MBTA 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 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, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5).

Julie A. Ciollo, Esq. SPR26/0648 Page 4 March 12, 2026 Additionally, the MBTA 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. “Reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Consequently, the MBTA must clarify whether the records contain any factual information that can be segregated. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § l0(a). The MBTA must clarify these matters. Conclusion Accordingly, the MBTA is ordered to provide Attorney Uhl 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. Attorney Uhl may appeal the substantive nature of the MBTA’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Lucas Uhl, Esq.