DuBois, Jr., Leo v. Massachusetts Department of Transportation - Registry of Motor Vehicles (SPR 20140088)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 20, 2014 SPR14/088 Mr. William E. McVey, Esq Massachusetts Department of Transportation 10 Park Plaza Boston, MA 02116 Dear Attorney MeV ey: I have received the petition ofMr. Leo L. DuBois, Jr. appealing the response of the Massachusetts Department of Transportation's Registry of Motor Vehicles Department (RMV) to his request for records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). This appeal encompasses several requests made on or about August 26, October 10, November 22 and December 11, of2013, and January 14, 2014. Specifically, Mr. Dubois requested copies of; 1. RMV records regarding procedures to be followed by RMV employees for issuing titles to old vehicles, 2. Procedures for the collection of sales/use tax on vehicles the RMV refuses to title, 3. Records documenting/authorizing the requirement of a prior registration or excise tax bill in order to obtain title for an old vehicle, 4. Forms for paying the sales/use tax when RMV refuses to title or register a vehicle, 5. Instructional documents issued to RMV employees for processing RMV- 1 forms or requests to pay a sales/use tax on untitled vehicles, or any vehicle for which the RMV Title Division refuses to issue a title, 6. Procedures or authorities allowing RMV employees to reject offers to pay a sales/use tax and return RMV- 1 fonns, bill of sale, affidavits and refuse to provide information on how to pay a sales/use tax, OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. William E. McVey, Esq SPR14/088 Febmary 20, 2014 Page Two 7. Instmction on how to request a hearing to appeal RMV employee decisions, 8. Documents outlining process for notifying the RMV of intent to file suit, what court to file suit in, and the address to send such notice, 9. Contact information for the Commissioner or any other RMV official to notify of RMV employee actions adverse to Massachusetts inhabitants, 10. RMV Regulations or Code ofMassachusetts Regulations (C.M.R.) involving G. L. c. 90D §§ 8, 9, 10, 11, 12, 13, 11. Documents detailing the legislative history of G. L. c. 90D §§ 8, 9, 10, 11, 12, 13, 12. Documents authorizing any RMV employee, the name address and contact number of each employee, the authority to interpret the general laws, especially c. 90D, and to issue training documents such as T2.1.4 and T2.1.3 or directives to administer such statutes in the absence Regulations promulgated by the Commissioner of the RMV and approved by the Legislature, 13. Documents indicating the procedures used by the RMV when issuing Motor Vehicle Excise Tax Bills and methods for accessing such records from the cities and towns and directives on how such records are to retained by cities and towns. On August 29, 2013 the RMV responded by acknowledging the August 26, 2013 request. On September 29, 2013 the RMV provided explanatory material regarding Vehicle Identification Numbers T2.2.2, Title History Search requirements, Insufficient Proof of Ownership (Establishing Ownership) T2.1.3 and Bonding a Title T2.1.4. On November 2, 2013 the RMV responded acknowledging the October 10, 2013 request. On November 29, 2013 the RMV responded with an inquiry including a request to explain the situation giving rise to the requests, and possibly narrow the requests. Please note with the exception of situations in which a records custodian is withholding records pursuant to Exemption (n), inquiries into a requester's status or motivation for seeking information are expressly prohibited. G. L. c. 66 § 10(a); see also 950 C.M.R. 32.05(5).

Mr. William E. McVey, Esq SPR14/088 February 20, 2014 Page Three "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 the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also In re Subpoena Duces Tecum, 445 Mass. 685, 687 n. 3 (2006). The statutory exemptions are strictly and narrowly construed. Globe Newspaper Co. v. Dist. Att'y for the Middle Dist., 439 Mass. 374, 380 (2003). Under the Public Records Law (Law) and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The RMV is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Accordingly, the RMV is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. In an effort to provide the RMV an opportunity to make clear its position on this matter my office has placed at least three (3) telephone calls to your office, all of which have gone unattended and unanswered. As of the date of this determination I cannot conclude that the RMV has met its burden in responding under the Law. Accordingly, the RMV is hereby ordered, within ten days of this letter, to provide Mr. DuBois with the requested records, or provide to this office, with specificity, how a particular exemption applies to each record. In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4). The Supervisor of Records may require that a custodian compile an index in response to a public records request. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 460 (2007); quoting Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 384 (2002).

Mr. William E. McVey, Esq SPR14/088 February 20, 2014 Page Four Said index shall meet the following requirements: (a) the index shall be contained in one document, complete in itself; (b) the index must adequately describe each withheld record or deletion from a released record; (c) the index must state the exemption or exemptions claimed for each withheld record or each deletion of a record; and, (d) the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. Nothing in 950 C.M.R. 32.08 shall preclude the Supervisor from employing alternative or supplemental procedures to meet the particular circumstances of each appeal. See 950 C.M.R. 32.08 (7)(a d). Whereas it is the duty of the records custodian to state with specificity which records are being withheld, the exact exemptions claimed, and the reasons why the records are being withheld, the RMV is hereby ordered to provide this office and Mr. DuBois with a custodial index of the records. If you have any questions about preparing this index, please do not hesitate to contact this office. If the RMV is planning to charge for the cost of complying with his public records request, Mr. DuBois must be provided with a detailed written, good faith estimate on each particular request. Once the RMV receives the estimate funds, the records must be provided. Failure to comply with this administrative order may result in the filing of a complaint for enforcement in the Superior Court by Mr. DuBois. This appeal is now closed. Supervisor of Records cc: Mr. Leo L. DuBois, Jr.