Bellow, Heather v. Massachusetts Department of Transportation (SPR 20261202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 15, 2026 SPR26/1202 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Heather Bellow appealing the response of the Department of Transportation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 17, 2026, Ms. Bellow requested the following: Regarding how the estimated $50,523,375 cost to replace the Brookside Road Bridge in Great Barrington was arrived at based on individual unit cost estimates, please email me any of the following documents that break down those costs: 1) Preliminary Cost Estimate(s) or Preliminary Design Estimate 2) Project Estimate Backup or supporting calculation ( Including worksheets, spreadsheets); or data from the Weighted Average Bid Application 3) Project scoping documents showing breakdown of individual costs; 4) Preliminary Engineering Report 5) Cost estimate summary sheets or composite estimates; 6) Any environmental, right-of-way, or utility impact assessments that factored into the cost. 7) If applicable, SARPET output or similar tools It may not be necessary to provide all of these documents/reports, if one or two show how the $50 million estimate was arrived at. The Department responded on February 26, 2026, and assigned reference number P000378-021726 to this request. Unsatisfied with the Department’s response, Ms. Bellow petitioned this office, and this appeal, SPR26/1202, 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

William J. Doyle, Esq. SPR26/1202 Page 2 April 15, 2026 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 February 26th Response In its February 26, 2026 response, the Department cites Exemption (d) of the Public Records Law for withholding a responsive record. See G. L. c. 4, § 7(26)(d). 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).

William J. Doyle, Esq. SPR26/1202 Page 3 April 15, 2026 In its February 26th response, under Exemption (d), the Department argues the following: We have identified one record that would be responsive to your request. However, this record is currently exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(d), relating to policy positions being developed by MassDOT; this exemption is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT is withholding the record under this exemption as it pertains to negotiations and/or discussions which have not been completed; once completed (in this case, once we have reached the 25% design submission phase), this exemption will no longer be applicable. Based on the Department’s response, I find it is unclear what deliberative process the responsive record relates 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”). Also, it is uncertain how disclosure of the records would taint any ongoing deliberative process. Additionally, I find the Department 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, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). The Department must clarify these matters. Further, any information contained in the responsive record 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 G. L. c. 66, § l0(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). It is also unclear from the Department’s response, which specific record the Department intends to withhold. To deny access to a record under the Public Records Law, a records access officer must identify the records, categories of records, or portions of the records it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Department is ordered to provide Ms. Bellow 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

William J. Doyle, Esq. SPR26/1202 Page 4 April 15, 2026 pre@sec.state.ma.us. Ms. Bellow may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Heather Bellow