Jean & Marsby Warters v. Massachusetts Department of Transportation (SPR 20170718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 6, 2017 SPR17/718 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 of Jean and Marsby 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). Jean and Marsby Warters specifically requested a number of records pertaining to "survey data and notes compiled" relating to an identified property in the Town of Fairhaven. Initially, you had provided responses on April 5th and May 18, 2017 along with some of the responsive records. Believing that Department is in possession or may have access to additional responsive records that were not provided, Jean and Marsby Warters petitioned this office for further action. Prior appeal The requested records were the subject of a prior appeal. See SPRl 7/568 Supervisor of Records Determination (May 10, 2017). Subsequent to the intervention by a member of the Public Records Division staff, you informed this office in a May 1g th response that additional records were obtained from a contractor and then forwarded to Jean and Marsby Warters in the form of a CD. The appeal was then closed. Current Appeal and Use of Custodian's Superior [(nowledge Jean and Marsby Warters had requested from the Department records showing "how boundaries were set by the surveyors or MassDOT" in regards to their property. Although the Department provided a May 18th response along with some records containing survey data and the "layout of the project," Jean and Marsby Warters contend that there were no records provided explaining the process by which the Department determined how their property boundaries were 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 7/718 Page2 June 6, 2017 set. For example, there was a lack of "surveyor' s notes and a surveyor's report explaining how boundaries were determined." 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, § lOA(d); 950 C.M.R. 32.03(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, § 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 I understand that a member of the Public Records Division staff emailed you a copy of the file and mailed a letter acknowledging the opening of this appeal. The Department is ordered to provide Jean and Marsby Warters with a response regarding the remainder of the records requested, in a manner consistent with this determination, the Public Records Law, and related Access Regulations. I will consider this administrative appeal closed with the proviso that the Department provides a substantive response to Jean and Marshy Warters without delay. 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, ~ i l l ~ Supervisor of Records cc: Jean and Marsby Warters