Gerrit Blauvelt v. Massachusetts Department of Transportation (SPR 20190101)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2019 SPR19/101 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation Office of the General Counsel 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Gerrit Blauvelt appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 3, 2018, Mr. Blauvelt requested: "1985 Airport Master Plan-AQW (North Adams); Airport Tree Clearing-Phase I-AIP No. 3-25-0036-09 AQW (North Adams; 1999 Airport Master Plan-AQW (North Adams)-AIP No. 3-25-0036-08; and 2003 Massachusetts Aeronautics Commission Grant information related to avigational easements for Williamstown, MA on runway construction-AQW (North Adams)." On July 3rd, MassDOT acknowledged Mr. Blauvelt's request, assigning the request Case No. P000588-070318, and informing Mr. Blauvelt that MassDOT's actual costs to provide him with the records will exceed four (4) hours of time. Your July 3rd response states, "[i]fyou would still like these records, let us know and we will prepare an invoice estimate for you." MassDOT also suggested that if Mr. Blauvelt wished to review the records first, that could be arranged. On July 25t\ MassDOT provided Mr. Blauvelt with a $100.00 fee estimate to provide him with copies of the 1999 Airport Master Plan and the grant information for aviation easements. No records In its July 25th response, MassDOT indicated that it does not have possession, custody or control of a 1985 Master Plan for North Adams or the airport tree clearing project record. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of 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

William L. Doyle, Esq. SPR19/101 Page 2 February 1, 2019 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 public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). In his November 16th email message to the MassDOT public records center, Mr. Blauvelt states, "I apologize for the delayed response, but I am mailing a check for these records." In another message on December 22nd, Mr. Blauvelt sought confirmation of MassDOT's receipt of the check, and inquired whether he needed to take further action to receive the responsive records. When MassDOT did not respond or update Mr. Blauvelt on a timeline for providing the responsive records, he petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Blauvelt informed this office that his $100.00 check was cashed by i\ MassDOT on December 1 and he left a January 12th voicemail message for you to check the status of his request. To date, Mr. Blauvelt has not been provided with any responsive records. MassDOT is advised that the Public Records Law requires that a records access officer, "identify a reasonable timeframe in which the agency shall produce the public records sought. .. " See G. L. c. 66, lO(b)(vi); see also 950 C.M.R. 32.06(2)(i). It is my understanding that a Public Records Division staff attorney contacted you regarding this appeal. Order Accordingly, MassDOT is ordered to provide Mr. Blauvelt with the responsive records, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response that may accompany the records 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Gerrit Blauvelt