Colman Herman v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20200224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 21, 2020 SPR20/0224 Julie Ciollo, Esq. Assistant General Counsel/Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 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; 950 C.M.R. 32.08(1). Specifically, on January 21, 2020, Mr. Herman requested a copy of" ... the resume ofMBTA general manager Jeffrey Steven Poftak." The MBTA responded on February 5, 2020, indicating that it did not possess the identified individual's current resume, and also claiming that if it did, it would be exempt under Exemption ( c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the MBTA's response, Mr. Herman petitioned this office and this appeal, SPR20/0224, 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, § 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, § lO(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, § IO(b)(viii); also 950 C.M.R. 32.07(2). Once fees are paid, a 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

Julie Ciollo, ·Esq. SPR20/0224 Page2 Febrnary 21, 2020 custodian must provide the responsive records. The MBTA 's February 5t1, response In its Febrnary 5, 2020 response, the MBTA indicates that it" ... does not possess or control any current resumes for Steven Poftak. However, we direct you to the biographical information contained in the following link ... " The MBTA further asserts that "[e]ven if [it] did have resumes responsive to the request, please be advised that these records are exempt from disclosure pursuant to M.G.L. ch. 4, sec. 7, clause 26 (c) as personnel records." Based on a conversation between a Public Records Division staff attorney and an MBTA representative, it is my understanding that the MBTA intends on providing a supplemental response to Mr. Herman. Accordingly, the MBTA is ordered to provide Mr. Herman with a response to his request in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Heiman may appeal the substantive nature of the MBTA's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~11u ~ Rebecca S. Murray Supervisor of Records cc: Colman Herman