Collin Dias v. Massachusetts Department of Transportation (SPR 20201319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 19, 2020 SPR20/1319 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). Specifically, on March 4, 2020, Mr. Dias requested records from January 2016 through November 2019, including: • “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…” Previous Appeal This request was the subject of a previous appeal. See SPR20/1112 Determination of the Supervisor of Records (July 20, 2020); SPR20/1236 Determination of the Supervisor of Records (August 5, 2020). In my August 5th determination, I found that MassDOT had not met its burden in explaining why more than four hours of time is required to produce the records. Further, I found MassDOT had not met its burden of specificity in withholding responsive records under G. L. c. 6C, § 13(a) and 700 C.M.R. 7.05(7). I ordered MassDOT to provide Mr. Dias with a response to the request, in a manner consistent with the order, the Public Records Law and its Regulations as soon as practicable. 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. SPR20/1319 Page 2 August 19, 2020 On August 5, 2020, MassDOT provided a response to Mr. Dias. Unsatisfied with MassDOT’s response, Mr. Dias petitioned this office and this appeal, SPR20/1319, was opened as a result. MassDOT’s August 5th response In its August 5th response, MassDOT states “With regard to Request 4, MassDOT did not issue a fee estimate as claimed; we directed you to the proper method of obtaining an accident report. General Laws, Chapter 66, Section 10(d) indicates that a record access officer must comply with fee estimate provisions ‘[u]nless expressly provided for otherwise...’ The fee for this report is expressly provided by regulation and has been the subject of a previous response to you (see SPR20/1262) in which we stated, ‘Please be advised that this fee is not calculated pursuant to the public records law but, rather, is mandated in the Code of Massachusetts Regulations, specifically 801 CMR 4.02, 540 Registry of Motor Vehicles, Records and Information (4).’ The $20 fee is provided for in this regulation and is, therefore, outside of the calculations provided in the public records law.” Given the fee is provided by 801 C.M.R. 4.02, MassDOT may charge the fee for the requested records that is provided by the regulation. MassDOT further states “[w]ith regard to Requests 1, 2, and 3, toll payments, toll invoices, and toll violations are clearly contemplated in both Massachusetts General Laws, Chapter 6C, Section 13(a) and 700 CMR 7.05(7) which mandates that ‘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…’ (emphasis added). As the data is to be available to 1) ‘enforcement purposes only with respect to toll collection regulations’ and 2) account holders upon written request, the statute expressly limits access to listed individuals or entities and, therefore, is subject to the second category of Exemption (a). Producing non-exempt, segregable portions of the records is not feasible in this instance because the applicable statute described above indicates ‘all information’ shall be kept confidential. Further, since you provide specific license plate numbers in your request, redaction is not sufficient to maintain confidentiality of Account Holder information.” 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

William J. Doyle, Esq. SPR20/1319 Page 3 August 19, 2020 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 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… G. L. c. 6C, § 13(a) states, in part: …[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).

William J. Doyle, Esq. SPR20/1319 Page 4 August 19, 2020 A review of the Regulations 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.” 700 C.M.R. 7.02 Conclusion Based on the MassDOT's response, I find that MassDOT has met its burden in responding to Mr. Dias’s appeal request. Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Collin Dias