James J. Morgan v. Massachusetts Port Authority (SPR 20171070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 17, 2017 SPR17/1070 Michelle Kalowski, Esq. Associate Chief Legal Counsel Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Attorney Kalowski: I have received the petition of James Morgan appealing the nomesponse of the Massachusetts Port Authority (Massport) to his request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Morgan requested various records within the possession of Mas sport concerning flight patterns, air traffic, and plane altitude. Claiming to not yet have received a substantive response, Mr. Morgan petitioned this office and this appeal was opened as a result. 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, § 10A(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, § 10(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Michelle Kalowski, Esq. SPR17/1070 Page 2 August 17, 2017 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 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 members 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 number provided in this determination for further information. Conclusion I understand Massport provided a response to Mr. Morgan, but it remains unclear if Massport responded in compliance with the Public Records Law. Accordingly, Massport is hereby ordered to provide a response to Mr. Morgan within ten business days. Said response shall be made in accordance with the Public Records Law, its Access Regulations and this order. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Morgan may appeal the substantive nature of Massp ort's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: James Morgan