Debra E. Berg, Esq. v. Massachusetts Department of Transportation (SPR 20171773)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 12, 2018 SPR17/1773 Ulysses Jacks, Esq. Massachusetts Department of Transportation 10 Park Plaza, Suite 3 510 Boston, MA 02116 Dear Attorney Jacks: I have received the petition of Attorney Debra Berg appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 11, 2017, Attorney Berg requested records relating to gas lines and digging at certain condos and areas. The Department initially responded on November 20, 2017 stating the records were not in the possession, custody or control of the Department and suggested the records may be located at an another identified state agency. Attorney Berg appealed stating she contacted the suggested state agency and.that agency believed the Department did indeed have possession, custody or control of the records she sought. 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. 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

Ulysses Jacks, Esq. SPRl 7/1773 Page 2 January 12, 2018 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. Order Subsequent to the intervention of a member of the Public Records Division staff, this office was notified that the Department is conducting an additional search for the records as the area is under control and custody of the Department. Accordingly, the Department is hereby ordered to provide Attorney Berg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Sincerely, ~u~ Supervisor of Records cc: Debra Berg, Esq.