Patricia Lawrence v. Massachusetts Bay Transportation Authority (SPR 20210862)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 20, 2021 SPR21/0862 Julie A Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite #7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Patricia Lawrence appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 26, 2021, Ms. Lawrence requested “…a study that was performed regarding ground vibration/energy from the MBTA layover in Newburyport (source VHB, July 26, 2019, project #13257.18)” and “…diary information that was filled out by the contract engineer” at an identified address. Prior Appeal This request was the subject of a prior appeal. See SPR21/0494 Determination of the Supervisor of the Public Records (March 11, 2021). On March 10, 2021, the MBTA provided a supplemental response. Unsatisfied with the response, Ms. Lawrence petitioned this office and this appeal, SPR21/0862, was opened as a result. Current Appeal In her current appeal, Ms. Lawrence indicated that the MBTA did not provide all responsive records. The MBTA’s March 10th Response In its March 10th response, the MBTA stated “…after discussing your request with the records custodian who has the most knowledge of this matter, … the MBTA has no knowledge of any diary that may have been kept by the VHB engineer or by and train crew members at Newburyport. Therefore, the MBTA does not have, nor is it aware of any records that are responsive to that part of your request.” 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. SPR21/0862 Page 2 April 20, 2021 Public records; agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The MBTA is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the MBTA's response, it is unclear whether the records for the MBTA’s agents were searched. As such, I find that the MBTA must provide additional information detailing their search in order to determine if the MBTA has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Order Accordingly, the MBTA is ordered provide Ms. Lawrence with a response to the request in a manner consistent with this order, the Public Records Law, its Regulations within 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: Patricia Lawrence