David Bixby v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20200692)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11, 2020 SPR20/0692 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of David Bixby appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bixby requested, [1.] “… all study data, completed survey forms, or anything else supporting the findings of roughly $14 million in economic benefits attributable to Chatham Airport for 2019.” [2.] “… Cox Chatham Municipal Airport Summary Sheet…” [3.] “MassDOT Aeronautics’ [Division] study … [released January 2019].” MassDOT responded to Mr. Bixby’s request and provided documents responsive to Request #2. Unsatisfied with the response to Requests #1 and #3, Mr. Bixby appealed and SPR20/0692 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, § 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. 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. SPR20/0692 Page 2 May 11, 2020 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). MassDOT’s April 15th Response In its April 15th response, MassDOT asserted, “[w]ith regard to ... remaining questions relative to data and survey forms, [MassDOT] [ is] re-checking with Aeronautics to confirm that no additional records were made and/or received by MassDOT relative to this study. Data used by the third-party vendor in preparing their study for MassDOT that was not part of any deliverable under the contract and not received by MassDOT, would remain in the care, custody, and control of the vendor.” Public records; agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). MassDOT is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. As a result, I find that the responsive investigative report falls within the definition of the Public Records Law, subject to exemptions. Consequently, based on the MassDOT's response, in addition to MassDOT confirming whether additional records exist, it is unclear whether there is an agency relationship between the MassDOT and the vendor who provided the study. As such, I find that MassDOT must provide additional information detailing whether any relationship exists in order to determine if MassDOT has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Request number 1 appeal In his April 27th appeal, Mr. Bixby stated, “[w]ith regard to the spreadsheet Chatham Municipal Airport Econ Survey Data … all financial data has been removed from the record … I am requested a complete and un-redacted copy of the spreadsheet.” Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to

William J. Doyle, Esq. SPR20/0692 Page 3 May 11, 2020 establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. MassDOT produced a redacted report without supporting the withholding of the responsive record. I find that MassDOT has not met its burden to withhold responsive records as no exemption has been cited as required by G. L. c.66, § 10(b)iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Order Accordingly, MassDOT is ordered provide Mr. Bixby with a response to the request in a manner consistent with this order, the Public Records Law, its Regulations as soon as practicable. 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 cc: David Bixby