William E. McKeon, Jr., Esq. v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20160832)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/832 Ms. Neha Dhupar, Esq. Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Dhupar: I have received the petition of William E. McKeon, Jr., Esq., appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney McKeon requested records associated with a particular application for permit. This request is the subject of a prior appeal. See SPR16/674 Determination ofthe Supervisor ofRecords (September 16, 2016). In that determination I ordered MassDOT to provide a revised response to Attorney McKeon's request. You provided responses to Attorney McKeon and he appealed. The Public Records Law 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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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, § lO(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). To meet the specificity requirement a custodian must not only OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Neha Dhupar, Esq. SPR16/832 Page2 October 18, 2016 cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Unclear response by MassDOT You have provided several email responses to Attorney McKeon but none that fully satisfy the statutory obligation of specificity in denying access to public records. Accordingly, I find MassDOT has failed to rebut the presumption that any responsive records are public records. Order Accordingly, MassDOT is hereby ordered to conduct a thorough review of its records and provide a definitive response to Attorney McKeon's request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Mr. William E. McKeon, Jr., Esq.