Felix Mercado Jr. v. Worcester Regional Transit Authority (SPR 20171021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2017 SPR17/1021 Jonathan E. Church, Administrator Worcester Regional Transit Authority 60 Forster Street Worcester, MA 01608 Dear Mr. Church: I have received the petition of Felix Mercado, Jr. appealing the response of the Worcester Regional Transit Authority (WRTA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, under the Public Records Law, Mr. Mercado requested, "any and all documents and minutes recorded pertaining to his personnel investigation conducted from January 9, 2017 to January 30, 2017; the numbers of employees; and their disciplinary end result pertaining to Class I Infraction, Section 2 (Harassment)." The Public Records Law strongly favors disclosure by creating a presumption that all governmental records ate 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). Status of the requester A review of Mr. Mercado's petition for an appeal reveals that he currently has open and active employment discrimination cases with the Massachusetts Commission Against Discrimination (MCAD) (Docket No. 16WEM00699), and the federal Equal Employment Opportunity Commission (EEOC) (Docket No. 16C-20 17-01 042). The Public Records Law appeal process shall not apply to situations in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). Whereas, the records may be directly related to Mr. Mercado's employment discrimination claims being reviewed by MCAD and the EEOC, he may have a unique right of access through either through the administrative discovery process with MCAD, the EEOC and the judiciary. 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

Jonathan E. Church SPR17/1021 Page 2 August 9, 2017 WRTA 's response WRTA responded to Mr. Mercado explaining that Ce.ntral Mass Transit Management, Inc. (CMTM) is the employer of all bus operators, dispatch personnel, roadway inspectors and maintenance personnel. While WRTA is a governmental entity, WRTA contends it is not the custodian ofthe personnel records requested by Mr.·Mercado. You directed Mr. Mercado to his employer, CMTM. Mr. Mercado appealed to the Supervisor ofRecords. In an August 4, 2017letter, WRTA's Legal Counsel, Michele E. Randazzo, Esq., of KP Law, P.C., informed this office that WRTA is not the employer; CMTM is the employer. Attorney Randazzo explained that records pertaining to employment matters are in the custody ofCMTM, not WRTA. Pursuant to G. L. c. 161B, § 25, transit authorities in Massachusetts are prohibited from directly operating any mass transportation service. Attorney Randazzo stated further that WRTAcontracts with an outside operating company, "First Transit, Inc.," which manages and operates the transit system, via a wholly owned subsidiary, CMTM. Also under this contract, First Transit is responsible for employing "all personnel necessary for the operation of the public transportation system." Whereas WRTA, First Transit and CMTM have a contract, I find that it is still unclear whether there is an agency relationship and whether WRTA would be entitled to request or obtain the records requested by Mr. Mercado from CMTM or First Transit. WRTA has not met its burden under the Public Records Law of demonstrating that WRTA does not have a duty to obtain the requested records from either CMTM or First Transit. Order Accordingly, WRTA is hereby ordered to provide Mr. Mercado with a detailed response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Mr. Mercado may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~YnWMay- Rebecca S. Murray Supervisor of Records cc: Felix Mercado Michele E. Randazzo, Esq.