Lynne Rudnicki v. Massachusetts Department of Transportation (SPR 20211846)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2021 SPR21/1846 William J. Doyle, Esq. Records Access Officer Department of Transportation 10 Park Plaza Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Lynne Rudnicki appealing the response of the 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 documents about a MassDOT project, specifically “…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.” The Department responded on July 26, 2021. Unsatisfied with the Department’s response, Ms. Rudnicki petitioned this office and this appeal, SPR21/1846, was opened as 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. 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

William J. Doyle, Esq. SPR21/1846 Page 2 August 9, 2021 The Department’s July 26th response In its July 26th response, the Department stated “… [i]n light of your reference to four options for two intersections in your appeal, please find attached additional plans.” Current Appeal In her current appeal, Ms. Rudnicki asserts “[t]hese documents have been altered by having extraneous lines in many areas making the plans illegible. I further appeal that these are not all the responsive documents.” Based on the Department’s response, it is unclear if it possesses additional records responsive to the above request. 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). 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lynne Rudnicki