Heather Carito v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20202096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 10, 2020 SPR20/2096 William J. Doyle, Esq. Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Heather Carito appealing the nonresponse of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Carito requested “1. Extra Work Orders with Indication of amount executed, Next Action, Remarks (Paid, Closed, date sent) through July 1, 2020. 2. Post Construction Meeting summary or recommendations or any related records (per SOP CSD 22-10-2-000). 3. Project closeout report.” Having received no response, she petitioned this office. 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); 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. 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

SPR20/2096 Attorney William Doyle Page 2 November 10, 2020 Order Subsequent to the opening of this appeal, the Department provided a supplemental response requesting clarification of Ms. Carito’s initial request on October 28. In light of this request, this office encourages both entities to continue communicating to facilitate a response. If issues remain unresolved, Ms. Carito may appeal to this office within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Heather Carito