Harry Mattison v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20200799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2020 SPR20/0799 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Harry Mattison 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. Mattison requested: “[a]ll documents relative to inspection reports, repairs, and cost to maintain bridges B16357, B16358, B16359 and B16369.” MassDOT’s case numbers for this request are: P000453-032420 and P000504. On March 24, 2020, MassDOT acknowledged Mr. Mattison’s request. In an April 30, 2020 response, MassDOT indicated: “…we have re-confirmed that the work involved in compiling the maintenance/repair records for the bridges would involve at least 10 hours of work and that, of course, is just an estimate at this point. I recognize that you received a spreadsheet in 2017 based on a previous request, but we have been informed that the spreadsheet was created as a result of the request and is not something that would have been made or received at the time of the request…At the relevant time for these bridges, the repair and maintenance costs were not always tracked by either bridge name or bridge identification number; this is what necessitates a manual keyword search to ensure accuracy. We have found that there are approximately 20-30 keywords that need to be searched in each of the records to identify these bridges and it is that manual process that is so time-consuming.” In addition, MassDOT offered to provide the compilation of the remaining inspection reports, and then try to find an alternative method to provide some of the responsive records once the stay-at-home order is lifted. 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. SPR20/0799 Page 2 May 27, 2020 On April 29, 2020, Mr. Mattison contends that the “I-90 Allston Multimodal Project NEPA Scoping Report” reveals that the Scoping Report indicates that the cost is approximately $800,000 annually to maintain the viaduct. Mr. Mattison states, “I am simply requesting the existing documents MassDOT used to calculate this annual cost.” As a result of MassDOT’s response, on May 15, 2020, Mr. Mattison petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition he states, “[f]or MassDOT to make this statement, it must have documents that show the itemized costs that total $800,000. However, MassDOT has failed to provide any documents related to the cost to maintain these bridges.” Fee estimate – agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) 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 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(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). On May 22nd, you indicated to this office that Mr. Mattison has objected to MassDOT’s fee estimate to provide the responsive records, and that MassDOT is in the process of reviewing the issues in this appeal. I note that Mr. Mattison did not provide this office with a copy of any fee estimate that was provided to him by MassDOT. It is my understanding that it is MassDOT’s intention to provide Mr. Mattison with a further response. I encourage the parties to continue to communicate to resolve the issues with Mr. Mattison’s request, and suggest a modification if it will allow the MassDOT to provide the requested information in a more efficient and less costly manner.

William J. Doyle, Esq. SPR20/0799 Page 3 May 27, 2020 Conclusion Accordingly, MassDOT is ordered to provide Mr. Mattison with a response to the request, in a manner consistent with this order, the Public Records Law and 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: Harry Mattison