Collin Dias v. Massachusetts Department of Transportation (SPR 20201112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2020 SPR20/1112 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 Collin Dias 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). Mr. Dias requested records from January 2016 through November 2019, specifically: • All [t]oll payments made by any owner/operator of any vehicle with the license plate Numbers of M1835 and M1803; • Any [t]oll invoices sent out to any owner/operator of any vehicle with the license plate numbers of M1835 and M1803; • Any record of toll violations made by any owner/operator of any vehicle with the license plate numbers of M1835 and M1803; • Any record of accidents where an involved vehicle had the license plate number of M1835 and M1803; and • Any record of citations/warnings given to any person operating a vehicle with the license plate number of M1835 and M1803. In its response, MassDOT denied Mr. Dias’ request in its entirety under G. L. c. 6C, § 13(a) and 700 C.M.R. 7.05(7), as this statute and regulation operates through Exemption (a) of the Public Records Law. As a result, Mr. Dias petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his July 7, 2020 petition, Mr. Dias asserts, “[MassDOT’s] statutory exemption does not apply here. I did not ask for any account holder information…I asked for toll invoices and 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. SPR20/1112 Page 2 July 20, 2020 toll violations from owner and operators of two [City of Fall River] vehicles on public roadways. As the toll payments from the violations would be paid for by the taxpayers.” 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). 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. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to

William J. Doyle, Esq. SPR20/1112 Page 3 July 20, 2020 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 6C, § 13(a) – Toll roads, bridges and tunnels; authority to collect tolls… This General Law and section allows MassDOT to charge, collect, and revise tolls for transit over the turnpike, bridges and tunnels. See G. L. c. 6C, § 13(a). In its response, MassDOT asserts the pertinent part of G. L. c. 6C, § 13(a) that allows it to withhold all the records requested by Mr. Dias is: …[t]he department shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data relative to account holders who participate in its electronic toll collection system. Such information shall not be a public record under clause Twenty-sixth of section 7 of chapter 4 or section 10 of chapter 66 and shall be used for enforcement purposes only with respect to toll collection regulations. An account holder may, upon written request to the department, have access to all information pertaining solely to the account holder… G. L. c. 6C, § 13(a). 700 C.M.R. 7.05(7) – Confidentiality of records MassDOT also cites, 700 C.M.R. 7.05(7), as support to withhold all the requested records. This regulation states: MassDOT shall maintain the confidentiality of all information including, but not limited to, photographs or other recorded images and credit and account data relative to Account Holders who utilize its EZDriveMA toll collection system. MassDOT shall maintain procedures consistent with M.G.L. c. 66A. For purposes of 700 CMR 11.06(7), all EZDriveMA customers, including customers of another agency or entity that may have toll collection reciprocity with MassDOT, are considered Account Holders. 700 C.M.R. 7.05(7). In your response, you informed Mr. Dias that all information relative to account holders who utilize EZDriveMA toll collection system is confidential. A review of the regulations by this office finds that EZDriveMA is defined as, “a cashless, automated system installed on or operating with respect to the Massachusetts Turnpike, MHS, a way, or at other MassDOT owned or MassDOT approved facilities for the purpose of collecting tolls, fares, fees, fines or other transactions as determined by MassDOT. The EZDriveMA system consists of E-ZPass MA and Pay-By-Plate.” See 700 C.M.R. 7.02

William J. Doyle, Esq. SPR20/1112 Page 4 July 20, 2020 While MassDOT has claimed that all the records Mr. Dias requested pertain to “account holders” of EZDriveMA, and thus they are exempt; however, I find that MassDOT has not supported withholding all of the requested records. In his July 7th request, Mr. Dias also requested “records of accidents, citations/warnings, and toll violations pertaining to the two identified license plates.” I find that MassDOT has not met its burden of specificity in responding to the request, and withholding all of the records requested under G. L. c. 6C, § 13(a) and 700 C.M.R. 7.05(7) as this statute and regulation operates through Exemption (a). Burden of specificity; duty to segregate MassDOT denied Mr. Dias’ request without fully supporting the withholding of all of the records under Exemption (a) in the Public Records Law. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); - - - - - Flatley, 419 Mass. at 511. MassDOT did not meet its burden of demonstrating how all the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). MassDOT must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, MassDOT did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). Conclusion Accordingly, MassDOT is ordered to provide Mr. Dias 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: Collin Dias