Howard Lenow v. Massachusetts Bay Transportation Authority (SPR 20190567)

The Commonwealth of Massachusetts William Francis Galvin,·Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2019 SPR19/0567 Julie Ciollo, Esq. Records Access officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Howard Lenow, Esq. 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, on November 27, 2018, 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. Previous appeal The requested records were the subject of a previous appeal, SPRl 9/0157. See 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

Julie Ciollo, Esq. SPR19/0567 Page 2 April 1, 2019 ih Determination of the Supervisor of Records (February 7, 2019). In my February determination, I ordered the MBTA to provide Attorney Lenow with a response in accordance with G. L. c. 66, § lO(a)-(b), and consistent with the order, the Public Records Law, and its ih Regulations. Following the February determination, the MBTA provided a response on February 15, 2019, including responsive records. Attorney Lenow made a revised request based on the MBTA's February 15th response and the MBTA responded on March 15, 2019. Unsatisfied with the MBTA's responses, Attorney Lenow petitioned this office and this appeal, SPRl 9/0567 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, § 1O A( 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, § 1 O(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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The MBTA 's February 15th response In its February 15, 2019 response, the MBTA asserts that it" ... does not hire 'independent contractor employees.' The MBTA does, from time to time, engage individuals on a contract basis to provide services as contractors (not as employees.)." The MBTA indicates that it" ... does maintain records of those entities and individuals who are issued IRS 1099 Forms. Accordingly, even though the MBTA does not hire employees who receive 1099 Forms ... , and, therefore, no such records exist; please find attached records which contain the names and addresses of those vendors who have been issued 1099 Forms for the dates that you have requested." Based on the MBTA's response, and a subsequent telephone conversation with the MBTA, in which the MBTA advised Attorney Lenow to provide a more specific request, Attorney Lenow made a revised request to the MBTA on February 26, 2019. In his February 26th request, Attorney Lenow requested the following records:

Julie Ciollo, Esq. SPR19/0567 Page 3 April 1, 2019 1. This first request incorporates all of the four questions initially submitted above in my November 28, 2018 initial request for information. However, in responding to these four questions, please respond to each of the four questions with regard to individuals that you characterized as "individuals" hired "on a contract basis to provide services as contractors (not as employees)." Please note that the request for information sought details about the individuals hired, rate of pay for each individual, date of hire and date of separation from the MBTA, job functions performed, department or division in which the person(s) worked, all documents regarding the hiring, contracting and/or employment with the MBTA and as otherwise requested and detailed in the first four questions. Moreover, to the extent that you listed the names of companies or vendors in your last response, please detail each individual that each company or vendor supplied as a worker, employee or contractor or any other designation that your client uses for each such individual supplied to the MBTA in the same level of detail request in my original request for information. 2. The names of any companies, agencies, partnerships, consulting firms or third party contractors of any designation that have been hired, retained, contracted or paid in any format to advise the MBTA on privatization issues of any kind, including but not limited to cutting of MBTA personnel, outsourcing or contracting out of any MBTA functions or operations, or reduction or replacement of services currently performed by union employees. This request seeks information on all such contracts defined above regardless of the cost or amount of each individual contract or group of contracts. 3. To the extent not provided in response to Question #2 above, provide copies of any and all RFPs (Requests for Proposals) and RFI' s (Requests for Information) or other requests for proposals, cost reductions, contracting out, outsourcing or reduction of MBTA services by MBTA employees. 4. Provide a list of all companies that the MBTA currently uses as outside contractors to perform MBTA functions with copies of all contracts that engaged such companies. 5. Identify the individual or individuals within the MBTA that are responsible for generating the documents provided in response to Questions #3 and #4, identified by each contract for each individual, and provide the contact information, including job title and department. 6. Provide copies of any and all internal memoranda within the MBTA or between MBTA employees and outside consultants, companies, agencies of other person or company that were produced to consider, evaluate, or otherwise deliberate on the identification of areas within the MBTA for potential subcontracting, privatizing or otherwise reducing services or departments within the MBTA. 7. To the extent not provided in response to any of the questions above, please provide copies of any and all policies, procedures, guidelines, or other measure of operating policy or operational reasons that the MBTA uses to

Julie Ciollo, Esq. SPR19/0567 Page4 April 1, 2019 assess the efficacy, benefit, cost saving or other reasons to explore contracting out or privatization of services, including whether or not the MBTA continues to and/or plans to evaluate such matters under the standards ofM.G.L. c. 7 § 52-55, otherwise known as the "Pacheco Bill" even though the MBTA was temporarily relieved of compliance with that statute until recently. If so, provide copies of any such analyses performed for each instance of proposed or considered contracting out or privatization. For any analyses performed under the Pacheco Bill after it was once again applied, provide those also. 8. Please list all positions in the Local 453 represented bargaining unit that remain vacant and/or unfilled, by title and department. Further, please indicate which of these positions the MBTA has current plans to fill and/or whether for each position the MBTA has decided to leave vacant since January 1, 2015. 9. To the extent not provided in response to the questions above, please indicate all job titles and/or positions that are currently being filled or the work performed by contract employees rather than by full or part time employees of the MBTA and for each such position identified, the name of the person performing such work, the date the person was hired and the cost and/or salary or contract payment for each such person since January 1, 2015. The MBTA's March 15th response Request I The MBTA responded to this revised request on March 15, 2019. In its March 15th response, with respect to request 1, the MBTA states that it produced responsive records in response to Attorney Lenow's earlier request. The MBTA further states that the" ... second question asks for names of individuals and where they were employed, date of hire, and salary or rate of pay. As indicated, none of the [MBTA's] employees are independent contractors." The MBTA also states that Attorney Lenow's " ... third question asks for documents of hire and employment, including contract of employment, letters of termination, and documents setting forth terms and conditions of employment. As indicated, none of the [MBTA's] employees are independent contractors. [A ttorney Lenow' s] fourth question asks for a reason why individuals were hired or contracted and the reason the position was not filled by a permanent employee. The [MBTA] does not have an obligation to create a record in response to a request or to answer questions in response to a request." Request 2 With respect to request 2, the MBTA indicates that Attorney Lenow' s request is identical to a request that he made on July 20, 2016 (July 20th request). As such, the MBTA restates its original response, dated August 26, 2016 (August 26th response), that it" ... does not have an obligation to create a record in response to a request or to answer questions in response to a request. ... Furthermore, as indicated, none of the [MBTA's] employees are independent contractors." The MBTA however, indicates that some of the information is publicly available

Julie Ciollo, Esq. SPR19/0567 Page 5 April 1, 2019 on its website and provides a link to such information. Request 3 With respect to request 3, the MBTA indicates that this request is identical to Attorney Lenow's July 20th request and restates its August 26th response advising Attorney Lenow to" ... consider limiting [his] request by timeframe so that [the MBTA] can evaluate the request and work with [Mr. Lenow] to provide responsive public records." The MBTA further states that " ... the request may be subject to Exemption (h). For a list of the [MBTA's] awarded contracts, open invitations for bids/requests for proposals, and pending awards, please see https://www.mbta.com/business_ center/bidding_solicitations/materials_ management/invi tation_for_bids/Default.asp." Request 4 With respect to request 4, the MBTA indicates that this request is identical to Attorney Lenow' s July 20th request and restates its August 26th response, indicating that it " ... does not have an obligation to create a record in response to a request or to answer questions in response to a request. To the extent that the request seeks copies of contracts, the request is extremely broad. Please consider limiting your request by subject matter or time so that we can evaluate the request and work with you to provide responsive public records ...." Request 5 With respect to request 5, the MBTA indicates that this request is identical to Attorney Lenow's July 20th request and restates its August 26th response which states that it" ... does not have an obligation to create a record in response to a request or to answer questions in response to a request." Request 6 With respect to request 6, the MBTA indicates that this request is identical to Attorney Lenow's July 20th request and restates its August 26th response, which states that "[t]his request may be subject to Exemptions (a), (d), and (h), and may be subject to the attorney-client privilege. Please narrow your request and provide a specific timeframe so that [the MBTA] can evaluate the request and work with you to provide responsive public records." Request 7 With respect to request 7, the MBTA indicates that this request is substantially similar to Attorney Lenow's July 20th request and restates its August 26th response. The MBTA's August 26th response asserts that it" ... does not have an obligation to create a record in response to a request or to answer questions in response to a request. With respect to [A ttorney Lenow' s] request for 'policies, procedures, guidelines,' the request may be subject to Exemptions (a), (d),

Julie Ciollo, Esq. SPR19/0567 Page 6 April 1, 2019 and (h), and may be subject to the attorney-client privilege." The MBTA further indicates that public records responsive to Attorney Lenow' s request may be found on its website. Request 8 With respect to request 8, the MBTA indicates that this request is substantially similar to Attorney Lenow' s July 20th request and restates its August 26th response. The MBTA asserts that it" ... does not have an obligation to create a record in response to a request or to answer questions in response to a request." Request 9 With respect to request 9, the MBTA indicates that this request is substantially similar to Attorney Lenow's July 20th request and restates its August 261 h response. The MBTA asserts that it" ... does not have an obligation to create a record in response to a request or to answer questions in response to a request. Furthermore, as indicated, none of the [MBTA's] employees are independent contractors." Creation ofa record -requests 1, 2, 4, 5, 7, 8, and 9 Under the Public Records Law, the MBTA is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). 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 ofrecords at the time of the request. G. L. c. 66, § lO(a)(ii). Based on the MBTA's response, it is unclear how compiling these records constitute creation of a record as indicated. The MBTA is reminded that under the Public Records Law, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data." 950 C.M.R. 32.07(1)(£). Accordingly, I find that although a records access officer is not obligated to create a record in response to a request, searching for and segregating responsive from nonresponsive records does not constitute creation of a record under the Public Records Law. The MBTA must provide additional information whether the requested records exist. Claiming exemptions with specificity requests 3, 6, and 7 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, § 1 O(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.

Julie Ciollo, Esq. SPR19/0567 Page 7 April 1,2019 J Although the MB TA informs Attorney Leno w to consider " ... narrowing [his request and provide a specific timeframe so that [the MBTA] can evaluate the request and work with [him] to provide responsive public records," it is unclear based on its response whether the MBTA possesses responsive records. 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, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the MBTA must identify the type of record(s) it has in its possession. Additionally, in accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in their custody to assist the requestor in obtaining the desired information. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). An RAO must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. If the MBTA maintains that the listed exemptions, Exemptions (a), (d), and (h), as well as the attorney-client privilege, apply to withhold portions of the responsive records from disclosure, the MBTA must provide a written explanation, with specificity, how a particular exemption applies to the redacted or withheld portions. 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. Public records available on website -requests 2, 3, and 7 In response to the above referenced requests, the MBTA states that certain information can be found on its website and provides links to its website. Please note that G. L. c. 66, § 6A(d ) provides in pertinent part "[i]f the public record requested is available on a public website pursuant to subsection (b) of section 19 of this chapter, section 14C of chapter 7 or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website." Modification ofr equest - requests 3, 4, and 6 In its March 15th response, the MBTA informs Attorney Lenow to consider" ... narrowing [his] request and provide a specific timeframe so that [the MBTA] can evaluate the request and work with [him] to provide responsive public records." Whereas the MBTA has indicated its willingness to work with Attorney Lenow to provide responsive records, this office encourages both parties to communicate further to enable the MBTA to provide the requested records. See G. L. c. 66, § 1 O(b )(v ii) ( an agency shall 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 to produce the records sought more efficiently and affordably). Attorney Lenow may consider narrowing his February 26th request to enable the MBTA provide responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal.

Julie Ciollo, Esq. SPR19/0567 Page 8 April 1, 2019 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 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: Howard Lenow, Esq.