Davidson, Esq., Patricia v. Massachusetts Bay Transportation Authority (SPR 20150078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 23, 2015 SPRlS/078 Ms. Susan M. Krupanski, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Krupanski: I have received the petition of Patricia L. Davidson, Esq. of Mirick, O'Connell, DeMallie & Lougee, LLP appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Attorney Davidson requested records pertaining to all MBTA involvement, review, consideration, and communication regarding the proposal by Wynn MA, LLC (Wynn) to build a resort casino in the Commonwealth. In a response dated December 5, 2014 the MBTA denied Attorney Davidson's request in its entirety, citing Exemptions (d), (h) and (i) ofthe Public Records Law, as well as the common law attorney-client privilege. Other than indicating "the matter is ongoing and not been finalized" the MBTA provided no additional information to support its exemption claims. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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 Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). 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); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the MBTA did not contain the specificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian must provide specificity with respect to any denial OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Susan M. Krupanski, Esq. SPR15/078 Page Two March 23, 2015 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. I find the MBT A has failed to meet its burden of specificity in denying access to public records. Accordingly, the MBTA is hereby ordered to provide all responsive records to Attorney Davidson in a manner consistent with this order, the Public Records Law and its Regulations. If the MBT A intends to withhold or redact any portion of the responsive records pursuant to a specifically stated exemption, Attorney Davidson must be provided with a custodial index. See 950 C.M.R. 32.08(8); see also Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444, 460 (2008). This administrative appeal is now closed. Supervisor of Records cc: Ms. Patricia L. Davidson, Esq.