David W. Bogan, Esq. v. Executive Office of Public Safety and Security - State 911 Department (SPR 20181362)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 25,20 18 SPR1811362 Frank Pozniak State 9 11 Department Executive Office of Public Safety and Security 138 0 Bay Street, Building C Taunton, MA 02780-1 088 Dear Mr. Pozniak: I have received the petition of David Bogan, Esq. of Locke Lord LLP on behalf of Charter Communications, Inc. appealing the response of the State 9 1 1 Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 27,2018 , Attorney Bogan requested: "any and all documents and records (including e-mails) reflecting or relating to any contractual arrangement(s) concerning Next Generation ("NG) 91 1 Traffic and Carrier Interconnection between communications service providers operating in Massachusetts and General Dynamics Information Technology ("GDIT"), as the designated NG 91 1 Service Provider and agent of the Massachusetts State 91 1 Department. This request includes, but is not limited to, any Memoranda of Understanding(s) andlor NG 9 1 1 Traffic Agreements between GDIT and any communications service providers concerning NG 9 1 1 Traffic." Attorney Bogan mentioned that for the purposes of this request, '"records' [are] defined to include, but not be limited to, any printed, typewritten, handwritten and all other recorded matter, including but not limited to, applications, draft applications, correspondence, files, memoranda, photographs, and compilations." The Department provided responses on June 28, 20 18; July 24,20 18; and August 13,201 8 indicating that it is not in possession of any other records except one document. Contending that the Department has a duty to request records from its agent, GDIT, Attorney Bogan petitioned this office and this appeal, SPR1811362, was opened as a result. 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

Frank Pozniak Page 2 September 25,2018 Tlze 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, 5 10A(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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 lO(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 June 28"'; July 24'"; and August 13 thr esponses In its June 28,2018 response, the Department acknowledged receipt of Attorney Bogan's request and indicated that after conducting a preliminary review of its records, it does ". . . not possess any contracts between the communication service providers and General Dynamics. However . . . [the Department] located a status meeting document excerpt dated April 11 ,201 8 providing a listing of the carriers and the status of carrier interconnection agreements. . . ." In its July 24,20 18 and August 13,201 8 responses, the Department stated that it "does not have possession, custody, or control of the public records [Attorney Bogan] has requested. [The Department] is unable to identify any other state or municipal agency that may have possession, custody, or control of the requested records." The Department further indicated that it is "not withholding any public records based on a statutory or other legal exemption . . ." Agency relationship; public records Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, 5 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). 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.

Frank Pozniak Page 3 September 25,2018 In his petition for appeal Attorney Bogan contends that GDIT is a contracted agent of the Department and asserts that it should be directed to obtain the requested records from its agent. In support of his position, Attorney Bogan included two documents, Letter ofAuthority and Carrier Notification of Change in 9-1-1 Services and Mutual Traflc Exchange Agreement, that indicate that GDIT is an agent of the Department. Both documents, in their preamble, state ". . . Pursuant to this integrated Letter of Authority and Carrier Notification ("LOP), General Dynamics Information Technology (GDIT) as an agent of the Massachusetts State 91 1 Department (S91I D) and designated NG 9-1 -1 Services Provider . . ." and ". . . This Mutual Traffic Exchange Agreement ("Agreement") is made effective as of ("Effective Date") by and between General Dynamics Information Technology, Inc. (GDIT), with a principal place of business at . . . as the designated NG 9-1 -1 Service Provider and agent of the Massachusetts State 9-1- 1 Department (S911D ) . . ." respectively. Attorney Bogan further claims that in a telephone conversation with a representative of the Department, the Department ". . . agreed that GDIT is [its] agent . . . by virtue of contract to deploy Next Generation 91 1. . ." Consequently, it is unclear how the requested records are not in the Department's custody or control. The Department is 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). As stated above, where the LOA and the Agreement indicate that GDIT is an agent of the Department, it is unclear how an agency relationship does not exist between the Department and GDIT. See id. To the extent that an agency relationship exists, records made or received by GDIT related to this matter may be subject to the Public Records Law. Thus, the Department's response does not explain how it cannot produce responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is ordered to provide Attorney Bogan 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.

Frank Pozniak Page 4 September 25,201 8 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Bogan, Esq.