Heather Carito v. Massachusetts Department of Transportation (SPR 20180548)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 2, 2018 SPRlS/548 Ulysses Jacks, Esq. Senior Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Jacks: I have received the petition of Heather Carito 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, Ms. Carito requested: Memoranda, schedules, reports and written correspondence to and from Kevin Huie, PM, Barletta, and Chris Evasius, John Mclnerney, R. Merrill, and Steve McLaughlin, MassDOT, related to the Casey Arborway "Contract Progress Schedule (Baseline, Statused, & Revised versions)" from Nov. 30, 2014, and May 1, 2015. Unsatisfied with the Department's response, which she claims was incomplete, Ms. Carito 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, § 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. SPR18/548 Page 2 May 2, 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. The Department's April 6th response In its response dated April 6, 2018, the Department indicates that a search of its records produced no e-mails responsive to Ms. Carita's request. Ms. Carito appealed this response, indicating that her request was not limited to e-mail. I understand a Public Records Division staff member contacted you regarding this matter, and you provided a supplemental response. The Department's May 2nd response In its response dated May 2, 2018, the Department clarifies its April 6th claim that there are no records responsive to Ms. Carita's request. The Department explains that "the Records Manager conducted a query of the electronically-stored documents using the exact language of [Ms. Carita's] request and found nothing responsive." While the Records Manager did locate "eight hundred eighty-five (885) potentially responsive records" by searching terms related to the Casey Arborway, these records had already been provided to Ms. Carito on February 8, 2018. The Department further indicates that while its search "failed to uncover any responsive records," it was able to locate a copy of the "Barletta Baseline Schedule that was transmitted in 2017." Ms. Carito was provided with "a copy of such schedule and the related explanation in November, 2017 and March, 2018." Use of custodian's superior knowledge In accordance with the Public Records Law, a custodian is expected to use their superior, knowledge of the records in their custody to assist the requestor in obtaining the desired information. 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). A records access officer must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § lO(b)(vii) ( a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). The Department has confirmed that it provided Ms. Carito with all records potentially responsive to her request, and that the Department is in possession of no additional responsive records.

Ulysses Jacks, Esq. SPR18/548 Page 3 May 2, 2018 Conclusion Accordingly, as the Department is in possession of no additional responsive records, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Heather Carito