Heather Carito v. Massachusetts Department of Transportation (SPR 20191998)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 16, 2019 SPR19/1998

William J. Doyle, Esq.

. Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116

Dear Attorney Doyle:

I have received the petition of Heather Carito appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically on August 23, 2019, Ms. Carito made a “Public Records Request for

1. Barletta Heavy Division Casey Arborway Schedule Update Narrative (Draft and Final) UP31 and UP32.

2. MassDOT Owner's Representative Monthly Report no. 46 (July),

3, Extra Work Orders with indication of amount executed, Next Action, Remarks (Paid, ‘Closed, date sent) through August 23, 2019.

4. Time Extension of Contract requests from Barletta Heavy Division and dollar amount requested and approved if applicable.”

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 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.

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

William J. Doyle, Esq, SPR19/1998 Page 2 October 16, 2019

Current Appeal

In an email to Ms, Carito dated September 4, 2019 the Department states, “[b]elow is a link to some of the records responsive to your request (namely, UP31, UP32, and the July Monthly Report); the remaining records will be sent to you as they are received in our office.”

In a letter to this office dated September 30, 2019, Ms. Carito writes, “MassDOT sent me some of the requested documents and said, ‘the remaining records will be sent to you as they are received in our office,’ It has been 16 business days since MassDOT told me this (see below). I have had no communication from MassDOT since and no update on when these documents will be available. The requested documents are official documents from Barletta (contractor) to MassDOT about its contract.”

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).

Although the Department expressed “the remaining records will be sent to you as they are received in our office,” it is unclear if the Department possesses additional records responsive to Ms. Carito’s request.

Conclusion

Accordingly, the Department is ordered to provide Ms. Carito with a response to the _ request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. 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.

Further, this office encourages Ms. Carito and the Department to continue to

_ communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (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 records sought more efficiently and affordably).

Abuser

Rebecca. S. Murray d

Supervisor of Records cc: Heather Carito