Colman Herman v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20210029)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 21, 2021 SPR21/0029 Julie A. Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Colman Herman appealing the nonresponse of the Massachusetts Bay Transportation Authority (Authority) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman submitted a request for records relating to consulting agreements within the possession of the Authority. Claiming to not yet have received a response, Mr. Herman petitioned this office and this appeal 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 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. Order I learned that a representative from the Authority intends on providing written a response to Mr. Herman. Accordingly, the Authority is ordered to provide Mr. Herman with a response made in accordance with the Public Records Law, its Access Regulations and this order within 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

Julie A. Ciollo, Esq. SPR21/0029 Page 2 January 21, 2021 10 business days. It is preferable to send an electronic copy of the response to this to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the Authority’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman