Mikhael El-Bayeh v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20202441)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2441 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 appeals The requested records were the subject of previous appeals. See SPR20/1357 Determination of the Supervisor of Records (August 21, 2020) and SPR20/1447 Determination of the Supervisor of Records (September 3, 2020). In my September 3rd response, I directed the Department to clarify whether it possesses additional records. Subsequently, the Department provided a response on October 15, 2020, which included a responsive record. Unsatisfied with the Department’s response, Mr. El-Bayeh petitioned this office and this appeal, SPR20/2441, 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). 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. SPR20/2441 Page 2 December 22, 2020 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. The Department’s October 15th response In its October 15, 2020 response, the Department enclosed a document, “report of month to month reimbursements for regular, overtime, and details for FY 2020 (7/1/19-6/30/2020).” The Department stated that it did not possess any further records responsive to this request. In an email correspondence on October 15th, Mr. El-Bayeh stated that although the provided record is responsive, he requests that the Department provide “. . . records underlying the summary sheet[.]” Although the Department indicated in its October 15th response that it does not possess any further records, I find the Department must clarify if it possesses “. . . records underlying the summary sheet” as requested. 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(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 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