Mary Schwager v. Massachusetts Department of Transportation (SPR 20192185)

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

Rebecca S, Murray Supervisor of Records

November 8, 2019 SPR19/2185

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 Mary Schwager appealing the nonresponse of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Ms. Schwager requested a fee estimate from the Department regarding certain records. Having received no response, she petitioned this office.

‘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,

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.

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. . SPR19/2185 Page 2 November 8, 2019

Order

Despite being notified of the opening of this appeal and a communication from a member of the Public Records Division staff, no response has been provided. Accordingly, the Department is ordered to provide Ms. Schwager with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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

ce: Mary Schwager