Howard Lenow v. Massachusetts Bay Transportation Authority (SPR 20190157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 7, 2019 SPR19/157 Terence P. McCourt, Esq. Greenberg Traurig LLP One International Place Suite 2000 Boston, MA 02110 Dear Attorney McCourt: I have received the petition of Howard Lenow, Esq. appealing the response of Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Lenow requested the following records: 1. Provide a list of all individuals who have been hired as "independent contractor" employees or as otherwise known as "1099 employees" for the last four years from the date of this letter; 2. For each individual, please provide the full name and the department or division where such individual was or continues to be employed and include the date of hire, date of separation if no longer working at the MBTA, the salary or rate of pay afforded each individual and job title or position. 3. For each individual, please provide any documents of hire and employment, including but not limited to letter of hire, contract of employment, letter of termination or other documents setting forth the terms and conditions of employment for each such individual. 4. For each such individual, please indicate the reason the individual was hired or contracted and the reason the position or work was not filled by a permanent employee or new permanent hire. This request was the subject of a fee petition filed by the MBTA. See SPRIS/2012 Determination of the Supervisor of Records (December 18, 2018). In my December 18th determination I declined to grant the MBTA's petition. On January 23, 2019 Attorney Lenow 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

Terence P. McCourt, Esq. SPR19/157 Page 2 February 7, 2019 petitioned this office indicating that he has yet to receive responsive records and SPRl 9/157 was opened as 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, § 1O (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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal In his appeal petition Attorney Lenow indicates "[t]o date, my client has not received any of the records requested and the MBTA has provided no timetable for providing the records requested." He notes that you contacted him regarding this matter "[o]n or about January 18, 2019." Attorney Lenow further asserts " ... my client has directed me to process this appeal to your office given that it has now been two months since my client's public records request was submitted and my client still has not received a response or any documents in reply to that request dated November 19, 2018. Accordingly, my client respectfully requests that the Office of the Supervisor of Public Records conduct an investigation of this matter and seek to compel the MBTA to respond to this long overdue request for public records." G. L. c. 66, § lO(a) provides the following: A records access officer appointed pursuant to section 6A, or a designee, shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request, provided that:

Terence P. Mccourt, Esq. SPR19/157 Page 3 February 7, 2019 (i) the request reasonably describes the public record sought; (ii) the public record is within the possession, custody or control of the agency or municipality that the records access officer serves; and (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d ). G. L. c. 66, § 1O (b) provides that if the agency or municipality does not intend to permit inspection or furnish a copy of a requested record, or the magnitude or difficulty of the request, or of multiple requests from the same requestor, unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality is unable to do so within the timeframe established in subsection (a), the agency or municipality must inform the requestor in writing within 10 business days after initial receipt of the request. The written response must not only be provided within 10 business days, but must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories ofrecords or portions ofrecords that the agency or. municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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 or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and

Terence P. Mccourt, Esq. SPRI9/157 Page 4 February 7, 2019 (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection ( a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. Although the MBTA submitted a fee petition to this office, it does not appear that it provided Attorney Lenow with a response in compliance with G. L. c. 66, § IO(a)-(b). I find the MBTA must provide Attorney Lenow a response in accordance with G. L. c. 66, § IO(a)-(b). Conclusion Accordingly, the MBTA is ordered to provide Attorney Lenow with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Rebecca S. Murray Supervisor of Records cc: Howard Lenow, Esq. Julie Ciollo, Esq.