Mikhael El-Bayeh v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20201447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2020 SPR20/1447 William Doyle, Esq. 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 Mikhael El-Bayeh appealing the response of the Department of Transportation (Department/MassDOT) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 20, 2020, Mr. El-Bayeh requested “Records related to the Memorandum of Understanding (‘MOU’) referenced in the attached documents between MassDOT and the Massachusetts State Police including the executed agreement and each ‘annual service plan and budget for services’ created since the MOU went into effect. I am also requesting any records related to the creation or subsequent spending for each ‘annual service plan and budget for services.’” Previous appeal The requested records were the subject of a previous appeal. See SPR20/1357 Determination of the Supervisor of Records (August 21, 2020). I closed SPR20/1357 after this office was notified that the Department provided Mr. El-Bayeh with a response on August 21, 2020. Claiming to not have received all the responsive records, Mr. El-Bayeh petitioned this office and this appeal, SPR20/1447, 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 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 Doyle, Esq. SPR20/1447 Page 2 September 3, 2020 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. The Department’s August 21st response In its August 21, 2020 response, the Department indicates “[i]n addition to the MOU which you are already in possession of, please be advised that MassDOT has no other records that would be responsive to your request, specifically an ‘annual service plan’. Below, however, is a link to the records responsive to your request for the ‘budget for services’…” In his appeal petition, Mr. El-Bayeh states the following: MassDOT provided the attached spreadsheet as insufficient response. I specifically requested “records related to the creation or subsequent spending for each ‘annual service plan and budget for services.’” I presume the numbers on this spreadsheet were not created out of thin air. The attached PDF file purporting to be the MOU also references the items listed below, and as such would indicate that relevant unreleased records exist. • Board submission of service plan and budget • “Cost-neutral” agreement with review of changes of costs • Internal procedures and processes related to the review and acceptance of charges from the MSP • Reporting around State Police costs for services and related expenses that are reimbursed by MassDOT[.] Based on Mr. El-Bayeh’s claim, I find the Department must confirm if it possesses the above referenced records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that additional records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Mr. El-Bayeh with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

William Doyle, Esq. SPR20/1447 Page 3 September 3, 2020 Regulations within ten (10) business days. 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: Mikhael El-Bayeh