Matathia, Esq., Sanford v. Massachusetts Department of Transportation - Registry of Motor Vehicles (SPR 20140418)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 3, 2014 SPR14/418 Mr. Ulysses Jacks, Esq. Deputy Chief Counsel Massachusetts Department of Transportation Legal Department Ten Park Plaza, Suite 4160 Boston, MA 02116 Dear Attorney Jacks: I have received the petition of Sanford M. Matathia, Esq. ofRackemann Sawyer & Brewster, P.C. on behalf of Ruth Glicksman, individually and as Trustee of The Ruth Glicksman Revocable Trust-2003 (Glicksman and the Trust) in respect to the property located at 1262 Brayton Avenue in Fall River (the Property). Attorney Matathia is appealing the June 25, 2014 response of the Massachusetts Department of Transportation (MassDOT) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Matathia requested a copy of seven categories of records. Attorney Matathia requested records on May 30, 2014, but MassDOT did not respond until June 25, 2014, twenty-six (26) days after the request. MassDOT is reminded that a custodian has a duty to comply with a public records request as soon as is practicable, without unreasonable delay, and always within ten (1 0) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The ten-day provision is a maximum, rather than a minimum time frame for complying with a public records request. Boston Globe Newspaper Company v. Commissioner of Education, 439 Mass. 124 (2003). In your initial response of June 25, 2014, you informed Attorney Matathia that MassDOT had no records responsive to his requests, except for one record which was responsive to Attorney Matathia's Request 1. Additionally, you informed Attorney Matathia that ifMassDOT had any records responsive to his requests, those records would be exempt pursuant to Exemption (d) of the Public Records Law. As the Public Records Law applies only to records that exist at the time of the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Ulysses Jacks, Esq. SPR14/418 Page Two October 3, 2014 request I decline to opine on a prospective response. Subsequent to the intervention of this office, an attorney on my staff inquired further as to whether records exist responsive to Requests 2-7. In an August 27,2014 telephone call, my attorney furthered this query, asking whether a search for records had been conducted within all of MassDOT. On September 23, 2014, you notified this office that MassDOT's Highway Department located records responsive to Attorney Matathia's requests 2, 5, and 6. MassDOT previously provided Attorney Matathia with the title deed in response to his request 1. You explained that the majority of the records are in electronic form, however the project plans are oversized and require some adjusting to copy. You stated that the cost of providing the records to Attorney Matathia is $109.21. It is my understanding that MassDOT has no records responsive to requests 3, 4 and 7, and that MassDOT has no further records responsive to the requests. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Accordingly, whereas MassDOT has agreed to provide the remaining existing responsive records, I will consider this appeal closed. If MassDOT is planning to charge Attorney Matathia for the cost of providing copies of these records, MassDOT must provide Attorney Matathia with a written, good faith estimate within ten (10) days of this determination. In the event a reconsideration appeal is opened by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered Supervisor of Records cc: Mr. Sanford M. Matathia, Esq.