Jack W. Pirozzolo v. Massachusetts Bay Transportation Authority (SPR 20180704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 21, 2018 SPR18/704 Julie Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Jack Pirozzolo appealing the response of the Massachusetts Bay Transportation Authority (Authority) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Pirozzolo requested: 1. A copy of the contract between the MBTA and Outfront Media, executed in or about September 2016, to install its ON Smart Media Platform on MBTA transit properties (the 2016 contract); 2. All documents related in any way to the development, solicitation, consideration, evaluation, or awarding of the 2016 contract; 3. All communications or documents reflecting communications between representatives of the MBTA and representatives of Outfront Media concerning, in whole or in part, either the 2016 contract or the MBTA RFR No. 150-17. The Authority's February 21st response The Authority's response, dated February 21, 2018, provided a copy of the 2016 contract in response to Request 1, and asked that Mr. Pirozzolo narrow Request 2 and Request 3, as fulfilling them would require too much speculation on the part of the Authority as to what is "related in any way," or "in whole or in part," to the contract. Mr. Pirozzolo claims that the copy of the 2016 contract he was provided in response to Request 1 is in places illegible. Mr. Pirozzolo also disputes the Authority's claim that Request 2 and Request 3 are overbroad, asserting that only the records custodian could have specific enough knowledge to suggest a reasonable modification of the scope of the request. 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. SPR18/704 Page 2 May 21, 2018 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, § IOA(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, § 1 O(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. Legibility of documents In his appeal petition, Mr. Pirozzolo claims that portions of the 2016 contract responsive to Request 1 are missing, out of order, and at times illegible. In a conversation with this office, the Authority explained that the copy of the 2016 contract provided to Mr. Pirozzolo is the only available version. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (c ustodian is not obliged to create a record in response to a request for information). Accordingly, I find that the Authority has met its burden in responding to Request 1. Scope of request Mr. Pirozzolo also indicates in his petition that he wishes to broaden Request 3 to include all communications between the MBTA and Outfront Media, regardless of subject. His petition does not, however, modify the scope of Request 2. This office encourages Mr. Pirozzolo and the Authority to communicate further to enable the Authority to provide the requested public records. G. L. c 66, § lO(a)(i) (the request must reasonably describe the public record sought). A more detailed request from Mr. Pirozzolo may allow the Authority to fulfill their duty to comply with requests for records which extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords

Julie Ciollo, Esq. SPR18/704 Page 3 May 21, 2018 at the time of the request. See G. L. c. 66, § lO(a)(ii). Additionally, the Authority must explain whether it possesses any additional responsive records and use its knowledge of the records to suggest a reasonable modification of the scope of the request. G. L. c. 66, § 1O (b )(vii) (a state agency 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). Conclusion Accordingly, the Authority is hereby ordered to provide a response to Mr. Pirozzolo made in accordance with the Public Records Law, its Access Regulations, and this order within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ifumesolved issues remain, Mr. Pirozzolo may appeal the substantive nature of the Authority's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Jack Pirozzolo