Mikhael El-Bayeh v. Massachusetts Department of Transportation (SPR 20213176)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3176 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Mikhael El-Bayeh 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 November 16, 2021, Mr. El-Bayeh requested the following: 1. Special Speed Regulation in effect on U.S. Route 3 in Burlington on August 4, 2021 2. Traffic engineering study supporting the Special Speed Regulation in effect on U.S. Route 3 in Burlington on August 4, 2021 3. MassDOT Speed Zoning Procedures in effect on August 4, 2021 4. MassHighway Speed Zoning Procedures in effect on October 31, 2005 5. MassHighway Speed Zoning Procedures in effect on March 29, 1996 6. Internal memorandums or other records pertaining to the 55 mph posted speed limit on U.S. Route 3 issued between 1995 and the date of this request 7. Any speed studies or other records created between 1995 and the date of this request reporting the speed of free-flowing traffic on U.S. Route 3, including, but not limited to, any records reporting the 85th percentile speed of free-flowing traffic on U.S. Route 3 8. February 2009 Road Safety Audit Report pertaining to U.S. Route 3. The Department responded on November 16, 2021. Unsatisfied with the response, Mr. El- Bayeh petitioned this office and this appeal, SPR21/3176, 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 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. SPR21/3176 Page 2 December 14, 2021 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Department’s December 1st response In its December 1st response the Department provided responsive documents. The Department also stated regarding the second part of the request that, “[a]ny responsive records for your Request #2…are in storage due to renovation of that custodian's office which will be completed in mid-January, 2022; once that is complete, anything responsive will be provided to us and can then be forwarded to you.” Current appeal In his appeal, Mr. El-Bayeh stated that “…it appears the responsive records you provided are incomplete.” Based on Mr. El-Bayeh’s appeal, in conjunction with the Department’s response, it is unclear if the Department possesses any additional records responsive to the 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. El-Bayeh’s 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.

William J. Doyle, Esq. SPR21/3176 Page 3 December 14, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mikhael El-Bayeh Ulysses Jacks, Esq.