Colman Herman v. MBTA Law Department (SPR 20191910)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 2, 2019 SPR19/1910 Julie A. Ciollo, Esq. MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Colman Herman 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 September 7, 2019 Mr. Herman requested "a hard copy and an electronic copy of any all information contained in the MBTA Land Tracker." The MBTA responded on September 16, 2019. Unsatisfied with this response, Mr. Herman appealed to this office. 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. Appeal In his appeal petition Mr. Herman indicates that on August 29, 2019 he wrote the following to the MBTA press officer: "How do I get access to this? https://landtracker. mbtarealty.com/LandTracker/Tracker/Index? ReturnUrl=%2fLandTracker%2f." He notes that when the press officer did not respond, he filed a public records request on September 7, 2019. 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 A. Ciollo, Esq. SPR19/1910 Page 2 October 2, 2019 The September ih request references the above email to the press officer and states "[b Jut I did not hear back from him. And so I now tum to the public records law. Please provide me with a hard copy and an electronic copy of any [ and] all information contained in the MBT A LandTracker." In the MBTA's September 16th response you assert"[] I am advised that there are tens of thousands of META-possessed records contained within the LandTracker system. Providing you with a copy of each and every record is unduly burdensome given the time and resources needed to respond to such a request. I am attaching, however, a listing of all land parcels covered by the system, organized in the normal course by municipality and location." You also note that "[i]f there is a particular parcel of interest, please let me know and I can gather additional information from the records custodian and make a further response. Please reply at your earliest convenience to clarify, or assist in the modification of the scope of, your request so that we may more efficiently or affordably accommodate you. We are unable to do any further work on this request until we receive your response." In his appeal petition Mr. Herman asserts "[ o ]n September 16, 2019, I responded to Ms. Ciollo as follows. 'Please tell me how I can access the tracker. https://landtracker. mbtarealty.com/LandTracker/Tracker/Index?RetumUrl=%2fLandTracker%2f.' [] Ms. Ciollo did not respond. [] The documents listed at the above land tracker link are public records. [] [a]ccordingly, please order the MBTA to inform me how I can gain access to the land tracker." Mr. Herman's September ih request was for "a hard copy and an electronic copy of any [and] all information contained in the MBTA Land Tracker." The MBTA's September 16th response addresses this September ih request. Based on Mr. Hennan's appeal, it does not appear that he objects to the substance of the MBTA's September 161h response at this time. Instead, he asks this office to "order the MBTA to inform [him] how [he] can gain access to the land tracker." A public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Whereas Mr. Herman's appeal asks this office to require the MBTA answer his question about how he can access the LandTracker website, I will consider this appeal closed. · Mr. Herman may appeal the substantive nature of the MBTA's September 16th response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, ~y~ Supervisor of Records cc: Colman Herman