Thomas W. Kirchofer v. Massachusetts Bay Transportation Authority (SPR 20171619)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 29, 2017 SPR17/1619 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Attorney Thomas Kirchofer appealing the response of Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, after correspondence between the requester and the records custodian narrowing the scope of the original request, on September 27, 2017, Attorney Kirchofer requested: 1) All resumes or curricula vitae submitted by Luis Manuel Ramirez ("Ramirez") to the MBTA or its agents between March 23, 2015 and August 15, 2017; 2) Any file containing materials considered by the MBTA in evaluating Ramirez as a candidate for the position ofMBTA general manager; 3) All written or electronic communications exchanged between the MBTA and Ramirez between March 23, 2015 and August 15, 2017; 4) All written or electronic communications exchanged between the MBTA and Lochlin Partners containing the search terms "Ramirez" or "Global Power" between March 23, 2015 and August 15, 2017; and 5) To the extent not already captured by the above request, all electronic communications between March 23, 2015 and August 15, 2017 containing the search terms "Ramirez" and/or "Luis" and the phrase "Global Power." In a letter dated October 19t\ the MBTA responded to his request, requesting Attorney Kirchofer provide more information about the records he is seeking and providing a fee estimate totaling $406.25 for the provision of 231 emails. In a letter dated October 2ot\ Attorney Kirchofer indicates his firm provided a check to the MBTA as payment of the estimated fee. Subsequently, Attorney Kirchofer sent multiple inquiries to the MBTA asking for information on when he can expect to receive the records paid for and reiterating his request is for both "written" and "electronic communications." Having not 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

Julie Ciollo, Esq. SPR17/1619 Page2 November 29, 2017 received a response or records, Attorney Kirchofer filed a petition with this office, dated November 15, 2017, and this appeal was opened as a result. In his petition, Attorney Kirchofer asserts the following bases for his appeal: 1) "The MBTA Is In Breach of the Law by Failing to Produce the Emails Already Paid for, and by Refusing to Say When the Emails Will be Produced;" 2) "The MBTA Has Made Specious Objections in Refusing to Search for Certain Categories of Documents;" and 3) "The MBTA Has Repeatedly Refused to Say if it Has Non-Electronic Written Communications with Mr. Ramirez and Lochlin Partners." 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Payment off ees With respect to Attorney Kirchofer's appeal regarding "[t]he MBTA Is In Breach of the Law by Failing to Produce the Emails Already Paid for, and by Refusing to Say When the Emails Will be Produced," the MBTA is advised that the Public Records Law requires a records access officer (RAO) to permit inspection or furnish a copy of any public record at reasonable times and without unreasonable delay provided that the RAO has received payment of a reasonable fee. In a response dated October 318 the MBTA confirms receipt of Attorney Kirchofer's \ check provided as payment for responsive records. Based on Attorney Kirchofer' s payment of

Julie Ciollo, Esq. SPRl 7/1619 Page 3 November 29, 2017 the fee and the MBTA's confirmation of such, the MBTA is hereby ordered to provide the responsive records to Attorney Kirchofer without further delay. Duty to use superior knowledge With respect to Attorney Kirchofer's appeal regarding "[t]he MBTA Has Made Specious Objections in Refusing to Search for Certain Categories of Documents," the MBTA is advised that custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). In a response dated October 19t\ the MBTA requests Attorney Kirchofer provide further information, specifically email addresses, in addition to information already provided, including search terms, in order to conduct the search for responsive records. Based on the MBTA's response and the expectation that it use its superior knowledge of the records in responding to the request, it is unclear why the MBTA cannot conduct the search with the information provided. The MBTA must either clarify this matter or conduct the search for responsive records and comply with the subsequent required procedures. See G. L. c. 66, § lO(a-b). Other responsive records With respect to Attorney Kirchofer's appeal regarding "[t]he MBTA Has Repeatedly Refused to Say if it Has Non-Electronic Written Communications with Mr. Ramirez and Lochlin Partners," the MBTA is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § 10( a)(ii). Despite indicating the MBTA possesses 231 responsive emails, it is unclear whether it possesses other responsive records. Specifically, the MBTA has failed to address whether or not it possesses "[n]on-[e]lectronic [w]ritten [c]ommunications with Mr. Ramirez and Lochlin." The MBTA must clarify this matter. I understand a Public Records Division staff member contacted you about this matter and you indicated the MBTA would provide a supplemental response to Attorney Kirchofer Order Accordingly, I will consider this administrative appeal closed with the proviso the MBTA provide Attorney Kirchofer with a response to the request, provided 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. Attorney Kirchofer may appeal the substantive nature of the MBTA's response within ninety days. See 950 C.M.R. 32.08(1).

Julie Ciollo, Esq. SPR17/1619 Page4 November 29, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Kirchofer, Esq.