James J. Morgan v. Massachusetts Port Authority (SPR 20171542)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 7, 2017 SPR17/1542 Michelle Kalowski, Esq. Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128-2909 Dear Attorney Kalowski: I have received the petition of James Morgan appealing the response of the Massachusetts Po1i Authority (Massport) to his request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Morgan requested information concerning flight patterns, air traffic, and plane altitude. 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, § 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. Previous Appeals This request was the subject of previous appeals. See SPRl 7/1070 Determination of the Supervisor of Records (August 17, 2017); SPRl 7/1380 Determination of the Supervisor of Records (September 29, 2017). I closed SPRl 7 /1380 with the proviso Massport provide Mr. Morgan with a response to his request within ten business days. 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 SPRI7/1542 Page 2 November 7, 2017 In a letter dated October 23, 2017, Massport provided Mr. Morgan with a response to his request. Subsequently, Mr. Morgan appealed and SPRI 7/1542 was opened as a result. Existence of records; no duty to create records; records available on a public website In its response, Masspmi indicates that "[it] is not in possession of any documents that are responsive to [Mr. Morgan's] request" and further indicates "that [Mr. Morgan] may be able to research relevant information on Massport's website (www.massport.com)." Under the Public Records Law, a records access office has a duty to comply with requests for information, which extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § IO(a)(ii). Massport is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 6A( d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Additionally, if the public record requested is available on a public website pursuant to G. L. c. 66 § I9(b), G. L. c. 7, § I4C or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website. See G. L. c. 66, § 6A(d). Based on Massport's response, it is unclear whether responsive records exist. Its October 23rd response indicates Massport does not possess responsive documents; however, the response also indicates Mr. Morgan may research for the responsive records on the Massport website. Massport must clarify this matter. I understand a Public Records Division staff member contacted you about this matter and you indicated Massport would provide a supplemental response to Mr. Morgan. Order Accordingly, I will consider this administrative appeal closed with the proviso Massport provide a response to Mr. Morgan in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Morgan may appeal the substantive nature ofMassport's response within ninety days. See 950 C.M.R. 32.08(1).

Michelle Kalowski SPRl 7/1542 Page 3 November 7, 2017 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: James J. Morgan