Heather Carito v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20160209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 7, 2016 SPR16/209 Ms. Neha Dhupar, Esq. Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Ms. Dhupar: I have received the petition of Heather Carita appealing the response of Massachusetts Department of Transportation (Department) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Carita requested a number of records pertaining to "521CMR for Forest Hills station." Initially the Department responded on February 16,2016 asking her to narrow the scope of her request. You stated "[t]o help eliminate cost and expedite this search I would request if you have available specific contract numbers, contact persons, or any relevant dates." On February 25,2016 Ms. Carita sent you a list of what she was specifically requesting beginning with, "[p] ublic records that evidence any communication regarding the Massachusetts Architectural Access Board requirements under 521CMR for Forest Hills station triggered by the MassDOT Casey Arborway Project that occurred between January 1 to November 1, 2015." With no further response from you, on March 14, 2015 Ms. Carita petitioned this office appealing the timeliness of the Department's response, the number ofrecords that Department claims are responsive, and consequently the Department's "delaying tactic." Timeliness and delay of response to public records requests The Department provided an initial response, but otherwise failed to meet its burden in providing a response to a request for public records. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response as soon as it is practicable, without umeasonable delay, and always within ten (1 0) calendar days. G. L. c. 66, § 10 (a)(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Department is OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Neha Dhupur, Esq. SPR16/209 Page 2 April 7, 2016 advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Reasonable description ofthe record; use of superior knowledge ofrecords Subsequent to the opening of this appeal, through a conversation with a member of my staff, you notified this office that a response was sent to Ms. Carito dated March 17, 2016, once again requesting for her to narrow the scope of her request. Under the Public Records Law and its Access Regulations ("Regulations"), "[a]ny person seeking access to a public record or any portion thereof shall provide a reasonable description of the requested record to the custodian so that he or she can identify and locate it promptly." See 950 C.M.R. 32.05(4). However, it is the duty of a government records custodian to use his or her superior knowledge in responding to requests for public records. 950 C.M.R. 32.05 ( 4). In addition, a custodian is expected to use her superior knowledge of the records in her custody to assist the requester in obtaining the desired information. Ms. Carito is encouraged to make a request for a specific document to expedite the search for responsive records. This request should contain a reasonable description of the requested record. Similarly, the Department is encouraged to communicate with Ms. Carito and use its superior knowledge of its records to assist her in obtaining the records she sought. No duty to create record Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time ofthe request. See G. L. c. 4, § 7(26). Order Whereas you had indicated to this office that you are willing to work with Ms. Carito to provide her with the records she seek, accordingly, Department is hereby ordered, within ten (1 0) days, to review the requests made by Ms. Carito and provide a written response to her, made in accordance with the Public Records Law, its Access Regulations and this order. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Ms. Carito 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

Ms. Neha Dhupur, Esq. SPR16/209 Page 3 April 7, 2016 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 ofrecords shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the Department 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 and other members of 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 n ber provided in this determination for further information. ours, cc: Ms. Heather Carito