Michael P. Dreslinski v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20192450)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor ofR ecords December 26, 2019 SPR19/2450 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation Ten Park Plaza, Suite 3 510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Michael Dreslinsld appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 1, 2019, Mr. Dreslinski requested two categories of records; including a driving record and "list or similar record of all active and/or outstanding citations, fines, fees, or penalties associated with license No ... " 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical fmm 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. 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); 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. SPR19/2450 Page 2 December 26, 2019 Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10( d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § lO(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d )(iv). See G. L. c. 66, § 10(d )(ii); 950 C.M.R. 32.06(4). MassDOT's November J3th Response In its November 13, 2019 response, MassDOT states "you are seeking your own information, however, you can access the Registry's website and get a copy of the records you are looking for ... " MassDOT then provided contact information for three other options in ordering the driving record. Mr. Dreslinski provided a copy of the "Public Driving Record Request Form" from the Registry of Motor Vehicle's (RMV) website. The RMV form indicates it cost $8 for an "online unattested version of the Public Driving Record" and $20 for a "true and attested version of the Public Driving Record." Mr. Dreslinski "appeals MassDOT's claim that the records sought by petitioner's request are exempt from disclosure, as well as their purported fee to access public records." MassDOT has not explained with specificity why the indicated amount is necessary for producing the requested record. Accordingly, I find MassDOT must revise its fee or provide a further explanation of how the fee assessed is consistent with G. L. c. 66, § 10(d ). Additionally, it is unclear if MassDOT is withholding any records pursuant to the Federal Drivers Privacy Protection Act. MassDOT must clarify this, specifically identify which records they are withholding, and how the exemption applies to the records to permit withholding. Conclusion Accordingly, MassDOT is ordered to provide a supplemental response to clarify the above, or provide Mr. Dreslinski with responsive records, provided in a manner consistent with

William J. Doyle, Esq. SPR19/2450 Page 3 December 26, 2019 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, ,,.j?u : d ,,; ~ .~. i!'I A · il 1 /J1 1 1 u ' v ' v '11 Afl Ni,. ~; . · Rebecca .&~urray {/ Supervisor of Records cc: Michael Dreslinski