Andy Metzger v. Massachusetts Bay Transportation Authority (SPR 20190160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 7, 2019 SPR19/0160 Sonia Skinner, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Skinner: I have received the petition of Andy Metzger 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. Metzger requested "any and all contracts, including amendments ... to the contract between the MBTA and Mancon, a warehouse vendor, between Jan. 9, 2017 and Dec. 26, 2018." Previous Appeal This request was the subject of a previous appeal. See SPR19/0038 Determination of the Supervisor of Records (January 22, 2019). I closed SPR18/0038 by ordering the MBTA to provide Mr. Metzger with a response to his request, provided in a manner consistent with the order, the Public Records Law and its Regulations without delay. In a letter dated January 23, 2019, the MBTA provided Mr. Metzger a response. Unsatisfied with this response, Mr. Metzger petitioned this office and as a result SPR19/0160 was opened. Current Appeal In his letter to this office dated January 24, 2019, Mr. Metzger states, "the MBTA supplied me with several documents covered by my original request, but it is clear that several other important documents that I specifically requested were not included, and there was no notice given for what documents were excluded and why." He further states that the "86 pages represent only a portion of the documents I requested." Mr. Metzger claims the "86-page Memorandum of Contract" is "very clearly a contract that was created at least several months after the original Mancon contract that I requested ... The MBTA's contract with Mancon, as has been well documented, began in the first two months of 2017." 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

Sonia Skinner, Esq SPR19/0160 Page2 February 7, 2019 Please be advised, 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, § 10(a )(ii). Conclusion In light of the MBTA's response and Mr. Metzger's claim, I find it unclear whether additional records exist; specifically, the MBTA must explain whether additional responsive records exist, whether they existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a )(ii), (b )(ii). If such records were destroyed, the MBTA must demonstrate whether it followed proper records retention protocol. Please note, the MBTA must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. Accordingly, the MBTA is ordered to provide Mr. Metzger 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Andy Metzger