Simpson, Neal v. Massachusetts Department of Transportation - Aeronautics Division (SPR 20150174)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 24,2015 SPRlS/174 Ms. Susan M. Krupanski, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Krupanski: I have received a petition from Neal Simpson of The Patriot Ledger appealing the February 24, 2015 response of the Massachusetts Bay Transportation Authority (MBTA) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Simpson requested two categories ofrecords regarding the MBTA's Red Line train service. While the MBTA provided a document in response to the first request, Mr. Simpson has indicated that this is not deemed responsive to his request. Initially the MBTA denied a portion of this request, citing the deliberative process exemption to the Public Records Law. G. L. c. 4, § 7 (26) (d). It has come to my attention that based upon an April28, 2015 conversation with a member of my legal staff, the MBTA has waived this exemption with respect to the responsive records. The remaining portions of this appeal relate to the remainder of records Mr. Simpson seeks with respect to his first request, and the MBTA's fee estimate related to the second part of his request. You informed an attorney on my staff on April 28, 2015 that the MBTA withdrew its Exemption (d) claim and would provide Mr. Simpson with a copy of a responsive database, and would provide a copy of the Vehicle Availability Report as the only record in existence responsive to request number two. This same day, Joseph Pesaturo, Director of Communications for the MBTA emailed Mr. Simpson with copies of those records. The MBTA waived all applicable fees. With respect to the first part ofthe request, Mr. Simpson requested "the number of Red Line subway trips that were cancelled or delayed for each month in calendar years 2012, 2013 and 2014, and the average length of delays reported in each month." It has come to the attention of this office that the MB T A does not have this information in one record. In a March 5, 2015 email to Mr. Simpson, Mr. Pesaturo stated, "the MBTA has the information, but it is not 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. SPR15/174 Page Two June 24, 2015 maintained in a 'newspaper-friendly' format." Both Mr. Simpson and this office inquired as to the format in which the records are available; Mr. Simpson indicated that he is willing to receive the records in whatever format the information exists. 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). Still, MBTA did not meet its burden when it received Mr. Simpson's request. The MBTA is obligated to explain to a requester what existing records are available in response to a public records request. In this instance Mr. Simpson was not informed by the MBTA as to the available format ofthe records responsive to request number two. In its fee estimate, the MBTA stated it would need to search multiple sources to cull responsive information and create a "new" record that does not exist in one document; however, Mr. Simpson did not request the MBTA to perform such a task. Accordingly, I find that the estimate is unreasonable as it does not respond to Mr. Simpson's request for copies ofrecords in existence. The estimate must be revised. Accordingly, MBTA is hereby ordered, within ten (10) days, to provide Mr. Simpson with a revised, written good faith estimate regarding request number two as well as for any outstanding records that may exist responsive to request number one. A copy ofMBTA's revised, good faith estimate must be provided to this office. It is preferable to send an electronic copy of the revised estimate to the Public Records Division at c.state.ma.us. 1ams upervisor of Records cc: Mr. Neal Simpson