Jean & Marsby Warters v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20170568)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 10, 2017 SPR17/568 William J. Doyle, Esq. Massachusetts Department of Transportation Office of the General Counsel Ten Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition ofMarsby and Jean Warters appealing the response of the Massachusetts Department of Transportation Office of the General Counsel (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Marsby and Jean Warters specifically requested a number of records pertaining to "survey data and notes compiled" in regards to an identified property in Fairhaven, MA. Initially, you had provided a response on April 5, 2017 along with some of the responsive records. Objecting to the partial denial ofresponsive records, Marsby and Jean Warters petitioned this office. Use of Custodian's Superior J(nowledge and the Public Records Law In your April 5th response, you stated that the Department does not have "the possession, custody, or control" of the remaining records originally requested by the Warters and you then directed them to a private company who may have the responsive records. On April 6th, the Warters petitioned this office contending that the Department should either have copies of the responsive records filed or should have access to the responsive records. Citing G. L. c. 66 § 10, the Warters believe, in the very least, the Department should compel said contractor to release those records. In accordance with the Public Records Law, a custodian is expected to use his/her superior knowledge of the records in his/her custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

William J. Doyle, Esq. SPRl 7/568 Page 2 May 10, 2017 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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 cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. To assist in requesting and responding to requests for public records please refer 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Order This office has emailed you a copy of the file and also mailed you a letter acknowledging the opening of this appeal. Accordingly, the Department is hereby ordered to provide Marsby and Jean Warters with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Sincerely, ~urr~ Supervisor of Records cc: Marsby and Jean Warters