Brian Keaney v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20180680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 23, 2018 SPRlS/680 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 ... Boston,MA02116- 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, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Keaney requested"[c Jopies 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." Previous appeals This request was the subject of two previous appeals. See SPR18/532 Determination of the Supervisor of Records (May 4, 2018); SPR18/287 Determination of the Supervisor of Records (March 20, 2018). I closed SPR18/532 by ordering the MBTA to provide Mr. Keaney with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. On May 7, 2018, the MBTA provided another response to Mr. Keaney. Unsatisfied with the MBTA' s response, Mr. Keaney petitioned this office and SPRl 8/680 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). 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. SPR18/630 Page2 May 23, 2018 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In his petition for appeal, Mr. Keaney indicates his belieft hat "Keolis is [t he MBTA 's] agent," and states that "the [MBTA] cites their contract with Keolis" in their May J1h response. 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). 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, 421 Mass. at 607 (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. In its May 7th response, the MBTA asserts that "[t]here has been some discussion as to whether Keolis is an agent of the MBTA. In short, it is not." The MBTA indicates that based on its Operating Agreement with Keolis "no agency relationship exists between Keolis and the MBTA, such that documents created, maintained and possessed solely by Keolis are subject to the Public Records Law via a request to the MBTA." The MBTA includes language from its Operating Agreement, which states in relevant part that "[i]n the performance of its obligations under this Agreement, the Operator is an independent contractor for, and not an agent of, the MBTA." Schedule 3.9, 1.1. Whereas, the MBTA and Keolis' Operating Agreement patently states the two have not formed an agency relationship, I find an agency relationship, like that contemplated in Fifty-one Hispanic Residents of Chelsea, has not been created. I understand a member of the Public Records Division staff made contact with your office about this matter.

Julie Ciollo, Esq. SPR18/630 Page 3 May 23, 2018 Conclusion Whereas the MBTA has confirmed it has no agency relationship with Keolis, I find the MBTA has met its burden in responding to this records request and will now consider this administrative appeal closed. If Mr. Keaney is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Keaney