Nicole Dungca v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20160026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords January 25, 2016 SPR16/026 Mr. John Englander, Esq. General Counsel, MassDOT and MBTA Massachusetts Department of Transportation Ten Park Plaza, Suite 4160 Boston, MA 02116 Dear Attorney Englander: I have received the petition of Nicole Dungca of the Boston Globe appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Dungca requested a copy of a report drafted by Berkeley Research Group, a consultancy firm hired by the MBTA regarding a proposal to expand the MBTA's Green Line subway service. The MBTA denied this request, citing the common law attorney client privilege and deliberative process exemption to the Public Records Law. G. L. c. 4, § 7(26)(d). The basis of Ms. Dungca's appeal was that the MBTA denied access to this record. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IO(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). Record provided It has come to my attention that the MBTA provided Ms. Dungca with this record with certain information redacted. An attorney on my staff discussed this matter with Ms. Dungca and informed her that she could appeal the substantive nature of the MBTA's provision of the record. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. John Englander SPR16/026 Page2 January 25, 2016 Whereas this matter was opened based upon the MBTA's denial of access to the responsive record, I will now consider this administrative appeal closed. As discussed above, Ms. Dungca may appeal the substantive nature of the MBTA's provision of the record within ninety (90) days. See 950 C.M.R. 32.08(2). To assist the MBTA in responding to requests for public records, I refer you to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determinati n for further information. Supervisor of Records cc: Ms. Nicole Dungca