Austin J. Freeley v. Massachusetts Department of Transportation (SPR 20212085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2021 SPR21/2085 Ulysses Jacks, Esq. Senior Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Jacks: I have received the petition of Austin J. Freeley, Esq. of the Law Office of Austin J. Freeley 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). Attorney Freeley requested “DOT Inventory Forms and all supporting documentation submitted for the seventeen public at- grade crossings from the City of Beverly from 2004 to the present to the Federal Railway Administration. This information was filed with the FRA by [a named individual], Highway-Rail Crossing Coordinator with the Mass. Highway Dept.” The Department provided a response on July 21, 2021, including responsive records. Claiming to not have received all the requested records, Attorney Freeley petitioned this office and this appeal, SPR21/2085, 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. 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. SPR21/2085 Page 2 August 31, 2021 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. Current appeal In its July 21, 2021 response, the Department enclosed responsive records. In his appeal petition, Attorney Freeley states “I received a response from the DOT dated 7/21/21 enclosing some, but not all of the requested information. Specifically, I am missing all inventory forms and incident/accident reports pertaining to the Beverly Depot, identified as Crossing Nos. 92105Y, 92104S and 926103K.” Based on the Department’s response, in conjunction with Attorney Freeley’s claim, I find the Department must confirm if it possesses additional records responsive to his 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). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Attorney Freeley 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: Austin J. Freeley, Esq.