Brian Keaney v. Massachusetts Bay Transportation Authority (SPR 20180287)

-~ The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 20, 2018 SPR18/287 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Brian Keaney appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1} Specifically, Mr. Keaney requested"[c ]opies of all complaints, comments, and other correspondence (including notes from telephone calls) passengers have made to either the MBTA to to [sic] Keolis about train 740 (leaving Walpole for South Station at 7:40am) in the last year" and "copies of documents showing what actions were taken in response to those complaints." The MBTA provided a response claiming "no responsive records were located within the MBTA." Mr. Keaney appealed believing that records exist. 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, § lO(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

Julie Ciollo, Esq. SPR18/287 Page2 March 20, 2018 Possession, custody or control of responsive records In its response, the MBTA indicates that "after a diligent search, no responsive records were located within the MBTA ... Complaints concerning the commuter rail are automatically forwarded to Keolis and are not maintained by the MBTA . Any responses to said complaints are generated by Keolis. To the extent that your request seeks records in the possession, custody, and/or control of Keolis, the MBT[A] has no such records." Under the Public Records Law, the MBTA 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). 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, § lO(a)(ii). In Mr. Kearney's petition he contests the MBTA's response. Mr. Kearney indicates "[he knows] for a fact that there have been complaints made about the train within the time frame specified because [he has] made them ( eg Incident COMP0249257)." Please be advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the MBTA's response it unclear whether there is an agency relationship and whether the MBTA would be entitled to request or obtain the records requested by Mr. Kearney from Keolis. MBTA has not met its burden under the Public Records Law of demonstrating that MBTA does not have a duty to obtain the requested records from Keolis. I understand a Public Records Division staff member contacted you about this matter. Conclusion Accordingly, the MBTA is ordered to provide Mr. Kearney 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.

Julie Ciollo, Esq. SPR18/287 Page 3 March 20, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Kearney