Aronson, Michael v. Massachusetts Bay Transportation Authority (SPR 20260878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 25, 2026 SPR26/0878 Julie A. Ciollo, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Michael Aronson, of the NY Daily News Editorial Board, 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 December 2, 2025, Mr. Aronson requested the following: [T]he Core Capacity Templates, which is a Excel spreadsheet, that have been submitted by the MBTA to the Federal Transit Administration for the Green Line Transformation (GLT) Core Capacity Program. I believe the GLT Core Capacity template was first submitted on March 16, 2021 and it has since been resubmitted annually. I am requesting a copy of each GLT Core Capacity Template that have been submitted from the first one to the present time. The MBTA responded on December 12, 2025, and assigned reference number R001455- 120225 to the request. Unsatisfied with the MBTA’s response, Mr. Aronson petitioned this office, and this appeal, SPR26/0878, 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 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. SPR26/0878 Page 2 March 25, 2026 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 MBTA’s December 12th Response In its December 12, 2025 response, the MBTA cites Exemption (d) of the Public Records Law for withholding a responsive record. See G. L. c. 4, § 7(26)(d). Current Appeal In his appeal petition, Mr. Aronson contends that: The exemption cited in this case does not apply because the template is neither an inter-agency nor intra-agency document. It is not a draft. It is a final document of the Commonwealth for each year that has been sent externally to the federal government. . . . Under the law, “intra-agency” means being sent to another office of the MBTA or MassDOT, while “inter-agency” would be another branch of the state government of the Commonwealth or its subdivisions. The federal government is neither interagency nor intra-agency, but is external to the agencies of the Commonwealth of Massachusetts. . . . Once the template has been submitted to the FTA it is no longer covered under Exemption (d). As the MBTA notes, the template may change each year, which is why I have requested all the templates submitted to the FTA. None of them are covered by Exemption (d). I would note that I have requested and received the same FTA Core Capacity Templates using public records laws from the public transit agencies of every other state that has applied for the FTA Core Capacity program.

Julie A. Ciollo, Esq. SPR26/0878 Page 3 March 25, 2026 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). In its response, under Exemption (d), the MBTA argues the following: Please be advised that the MBTA is withholding release of the requested template, 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 template you are seeking is has [sic] been submitted to the FTA as part of an ongoing and open grant process. Until such time as the MBTA receives a decision on the grant, the template is subject to change. Release at this time would harm the ongoing deliberation and process between the MBTA and FTA and negatively affect the MBTA’s ability to continue to develop its policy positions during this ongoing deliberative process. Therefore, we must deny your request at this time. Based on the MBTA’s response, although the MBTA has explained that the response record is part of an ongoing deliberative process, I find 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). The MBTA must clarify this.

Julie A. Ciollo, Esq. SPR26/0878 Page 4 March 25, 2026 Further, 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. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. 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). Consequently, the MBA must explain whether the record can be redacted so that segregable portions can be provided, as any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the MBTA is ordered to provide Mr. Aronson 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. Aronson may further 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: Michael Aronson