Grossack, Esq., David v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20150680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 8, 2015 SPRlS/680 Mr. Ulysses Jacks, Esq. Deputy Chief Counsel Department of Transportation Office of the General Counsel 10 Park Plaza; Suite Boston, MA 02116 Dear Attorney Jacks: I have received the petition of David C. Grossack, Esq. on behalf of his specifically named client appealing the response of the Massachusetts Department of Transportation (MassDOT) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Grossack requested a copy of six categories of records related to the Massachusetts Department of Transportation Electronic Toll Collection Program (EZ Pass). MassDOT denied Attorney Grossack's request, stating that the request "does not provide the custodian with an adequate description to promptly locate the requested documents." Further, MassDOT denied the request by citing a portion of the Massachusetts General Laws associated with Tolls. G. L. c. 4, § 7 (26) (a); G. L. c. 6C, § 13(a). Subsequent to the opening of this appeal members of my staff attempted to reach you to discuss this appeal; my understanding is that these attempts were unsuccessful. In particular, Attorney Grossack requested: 1. Records related to and identifying Attorney Grossack' s client; 2. Records of customer complaints regarding the fairness and accuracy of EZ Pass debt collection practices; 3. Records disclosing the identity of any vendors assisting MassDOT in EZ Pass debt collection; 4. Records of any complaints by the specific client of Attorney Grossack; 5. Records reporting on the fairness and accuracy of EZ Pass fine assessment and collection practices, and 6. Records of internal memoranda of MassDOT regarding the fairness and accuracy of EZ Pass fine assessment and collection practices. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Ulysses Jacks, Esq. SPR15/680 Page Two December 8, 2015 Failure to notify Attorney Grossack of right to appeal The Public Records Access Regulations (Regulations) state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1). In denying access to records MassDOT failed to meet this burden. MassDOT is advised that it must notify requesters of administrative remedies in instances where there is a denial of access to records. Presumptions and burdens regarding public records 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). 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 (c ); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Status of the requester Attorney Grossack attached with his petition a release by his client regarding records in which the client is identified. Attorney Grossack also indicated that his client is indigent. Please be advised that the Public Records Law does not distinguish between requesters. The right of requesters to inspect and obtain copies of public records is a clear statutory mandate. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly the status of Attorney Grossack and his client will have no impact on the public status of records. Exemption (a) Your July 27, 2015 written response denies Attorney Grossack access to all responsive records, citing statutory authority to justify nondisclosure. Therefore, Exemption (a) merits consideration. It allows withholding of those records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) MassDOT claims that G. L. c. 6C, Section 13(a), regarding Tolls is the statute that operates through Exemption (a) that allows MassDOT to withhold all the records requested by Attorney Grossack. This statute states:

Mr. Ulysses Jacks, Esq. SPR15/680 Page Three December 8, 2015 ... [T]he department shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data relative to account holders who participate in its electronic toll collection system. Such information shall not be a public record under clause Twenty-sixth of section 7 or section 10 of chapter 66 and shall be used for enforcement purposes with respect to toll collection regulations ... G. L. c. 6C, § 13(a) (emphasis added) Order Section 13(a) of Chapter 6C prohibits disclosure of confidential information specific to account holders. I find that MassDOT has not shown why it could not redact exempt portions from any responsive records. Further, I find that Attorney Grossack's request, while broad, is not vague. MassDOT could provide a response regarding records in existence that are responsive. Accordingly, whereas MassDOT has not overcome the presumption that any responsive records are public, MassDOT is hereby ordered, within ten (10) days ofthis order, to provide Attorney Grossack with a revised response consistent with the Public Records Law, its Regulations and this administrative order. If the MassDOT maintains tha,t any portion ofthe responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Grossack a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you m st provide the responsive records. Supervisor of Records cc: Mr. David Grossack, Esq.