Ariel Mercado v. Worcester Regional Transit Authority (SPR 20190534)

William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

March 25, 2019 SPR19/0534

Dennis J. Lipka

Worcester Regional Transit Authority 60 Foster Street

Worcester, MA 01608

Dear Mr. Lipka:

I have received the petition of Ariel Mercado appealing the response of the Worcester Regional Transit Authority (Authority) to a request for public records. G. L. c. 66, § 10A; see

also 950 C.MLR. 32.08(1). Specifically, on January 18; 2019, Mr. Mercado requested the following records:

“1, All current numbers of former or current employees and the members of the public under litigations/lawsuits against [the Authority]. This includes the Massachusetts Commission Against Discrimination, Federal Transit Administration Office of Civil Rights, The National Labor Relations Board, The Department of Labor, District/Superior/Federal and Appeal court, Department of Unemployment. All records within the year 2016 to 2019 and the types of lawsuits they are.

2. The amount in dollars of how much is getting used to pay for attorney fees

from the [Authority’s] funds for these litigation/lawsuit between these dates above. This may include Central Mass Transit Management as they receive the funds from [the Authority].”

The Authority responded on January 29, 2019, denying access to the responsive records. Unsatisfied with the Authority’s response, Mr. Mercado petitioned this office and this appeal, SPR19/0534, was opened as a 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, § 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

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

Dennis J. Lipka SPR19/0534 Page 2 March 25, 2019

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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The Authority’s Jan uary 29" response

In its January 29, 2019 response, the Authority asserts that the requested records “. . . are the property of First Transit, the management company retained by the [Authority] to operate the transit operations. As such these documents are the property of a private company not subject to the requirements of the Massachusetts Public Records Act.” The Authority further asserts that “fijn the FTA filing made by the [Authority] for the period 2015 through 2017 there were no legal actions brought against the [Authority]. For the years 2018 and 2019 any actions brought against the [Authority] would be on going and it is our policy not to comment on current litigation, if there were any active.”

Burden of specificity; segregable portions

Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records 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 . . .”); see also Globe Newspaper Co. v. Police Comm ’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

The Authority did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Authority must identify records in its possession that it withheld.

Further, the Authority denied Mr. Mercado access to certain records without claiming any exemption(s) to the Public Records Law that would support its position to withhold responsive records from disclosure. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co., 419 Mass. at 857; Flatley, 419 Mass. at 511. As a result, I find the Authority did

Dennis J. Lipka SPR19/0534 Page 3 March 25, 2019

not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Authority must provide additional information regarding how the responsive records are exempt

under the Public Records Law and explain why any non-exempt, segregable portions cannot be provided.

Agency relationship

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, § 10(a); see also Reinstein, 378 Mass. at 289-90. In the Authority’s response, it indicated that the requested records “are the property of First Transit, the management company retained by the [Authority] to operate the transit operations. As such these documents are the property of a private company not subject to the requirements of the Massachusetts Public Records Act.” The Authority 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.

Based on the Authority’s response, it is unclear whether an agency relationship exists between the Authority and First Transit. It is additionally uncertain how the Authority would not be entitled to obtain the records requested by Mr. Mercado from First Transit. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607-08 (1996) (discussing agency relationship between a public and private entity within the context of the Public Records Law). Whenever 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. I find the Authority must provide additional information regarding this issue. I understand a Public Records Division staff attorney contacted your office about this appeal. |

Conclusion

Accordingly, the Authority is ordered to provide Mr. Mercado 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.

Dennis J. Lipka SPR19/0534

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March 25, 2019 Sincerely, Rebecca S. Murray Supervisor of Records

cc: Ariel Mercado