Lynne Rudnicki v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20211531)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2, 2021 SPR21/1531 Ulysses Jacks, Esq. Senior Counsel Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Jacks: I have received the petition of Lynne Rudnicki appealing the response 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). On March 30, 2021, Ms. Rudnicki requested “[i]n reference to MassDOT project #608095, I would like copies of the plans and various revisions from conception to now including but not limited to various alternatives configurations of intersections and roadways whether selected or not.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1121 Supervisor of Records Determination (May 14, 2021). The Department provided a response with records to Ms. Rudnicki on June 17, 2021. Unsatisfied with the Department’s response, Ms. Rudnicki petitioned this office and this appeal, SPR21/1531, 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 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

Ulysses Jacks, Esq. SPR21/1531 Page 2 July 2, 2021 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 June 17th response In its June 17th response, the Department states “[p]lease find attached responsive records that depict plans and configurations of intersections and roadway related to the project at issue. These records were shared with the North Andover Planning Board. Please note that these records depict draft plans and are subject to change.” In Ms. Rudnicki’s appeal to this office, she states the June 17th response by the Department does not satisfy her request. Ms. Rudnicki explains, “[t]he original appeal provided for documents that were created in and reviewed in 2018 forward to now. There were at least four options for at least two of these intersections.” Ms. Rudnicki included “emails between MassDot and others which reflect the existence of these plans in the original appeal which is attached. MassDOT has provided documents from 2021 which are not responsive to the request and are not even ‘plans’ but are a presentation which does not include plans and/or the alternatives.” Records in existence 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 light of the issues raised by Ms. Rudnicki regarding the existence of additional responsive records, I find it is unclear whether additional responsive records exist. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Rudnicki 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.

Ulysses Jacks, Esq. SPR21/1531 Page 3 July 2, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Lynne Rudnicki