Heather Miller, Esq. v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20200726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18, 2020 SPR20/0726 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Heather Miller, Esq., General Counsel and Policy Director of Charles River Watershed Association (CRWA), 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). On January 3, 2020, Attorney Miller requested records regarding the Allston Multimodal Project: All records discussing; contemplating; deliberating; or otherwise referring to the Relocation of Soldiers Field road, Interstate 90 (I-90), and/or a pedestrian or bike path into or over the Charles River during construction of the Allston Multimodal Project that were (1) generated, created, sent, or received by, or otherwise in the possession of, the Secretary of MassDOT, MassDOT leadership, MassDOT staff, and/or consultants working on behalf of MassDOT; (2) prior to the release of the ‘Decision of the Secretary of the [MassDOT]: Preferred Alternative for the Throat Section of the Allston Multimodal Project on January 10, 2019. Attorney Miller also expresses in her request that the records include, but not limited to, documents; letter; emails; memoranda; meeting minutes; studies, and any other communciations in the possession of the parties listed above. Furthermore, Attorney Miller asks that the MassDOT waive any applicable fees as the CRWA is a non-profit organization, and the disclosure of the responsive records is in the public interest. 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. SPR20/0726 Page 2 May 18, 2020 On March 3, 2020, the MassDOT provided responsive records, and informed Attorney Miller that in addition, all other records and/or information that would be responsive can be found on either the project’s website or the site for the MassDOT Board of Directors. In a March 4, 2020 email, Attorney Miller states, “[m]y request included internal emails, memoranda, and other documents, not just public presentations and information.” At that time, Attorney Miller asked MassDOT to confirm that there are no further records responsive to her request, other than those on the project website or MassDOT’s Board of Directors’ website. Unsatisfied with MassDOT’s response, on April 15, 2020, Attorney Miller petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her petition, Attorney Miller explained that the link provided by MassDOT to obtain records only contained one document, a Task Force Meeting presentation dated May 23, 2019. Attorney Miller asserts that she requested all records prior to the MassDOT Secretary’s decision on January 10, 2019. She also asserts that MassDOT did not provide any records responsive to her request for internal emails, memoranda, and other documents. 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) (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…”); 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). It is unclear from MassDOT’s March 4, 2020 response whether it is in possession of any further records responsive to Attorney Miller’s January 3, 2020 request that will be provided or, whether MassDOT is withholding any responsive records pursuant to an exemption in the Public Records Law. I find that MassDOT must clarify this issue. Conclusion Accordingly, MassDOT is ordered to provide Attorney Miller with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as is 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.

William J. Doyle, Esq. SPR20/0726 Page 3 May 18, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Heather Miller, Esq., Charles River Watershed Association