Timothy W. Tapply v. Boston, City of - Transportation Department (SPR 20220133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2022 SPR22/0133 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Timothy W. Tapply, Esq. appealing the response of the Boston Transportation Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 14, 2021, Attorney Tapply requested, “[a]ll records related to the traffic lights at the intersection of Washington Street and Ukraine Way in the Dorchester neighborhood on or about May 22, 2019.” The Department provided a response on December 16, 2021. Unsatisfied with the response, Attorney Tapply petitioned this office and this appeal, SPR22/0133, 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. 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

Shawn A. Williams, Esq. SPR22/0133 Page 2 February 1, 2022 The Department’s December 16th Response On December 16, 2021, the Department provided Attorney Tapply with a response stating that no records exists. The Department followed-up with another response explaining to Attorney Tapply that the Department was “advised by a member of the staff at the Boston Transportation Department (BTD) that this location was under construction at the timeframes mentioned in their request and as a result you would need to obtain the information from MassDOT. A link to their website is provided below.” In his appeal to this office, Attorney Tapply contends the “correspondence with the Massachusetts Department of Transportation (dated December 31, 2021) and the Boston Transportation Department (dated December 16, 2021 – also attached) that both departments claim the information requested should be obtained through the other. It is outside of our knowledge or ability to determine which is correct in this situation, only that one of the Transportation Departments (either Massachusetts or Boston) has the relevant information.” 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). If the Department does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In light of the issues raised by Attorney Tapply regarding possession of relevant information, I find it is unclear whether responsive records exist in the Department’s possession. The Department must clarify this matter. This office continues to encourage Attorney Tapply and the Department to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Attorney Tapply 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.

Shawn A. Williams, Esq. SPR22/0133 Page 3 February 1, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy W. Tapply, Esq. Jean E. Shirley