Timothy W. Tapply v. Massachusetts Department of Transportation (SPR 20220568)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 21, 2021 SPR22/0568 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 Timothy W. Tapply, Esq. 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 December 16, 2021, Stephen Delcuze, Esq. 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.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/0132 Determination of the Supervisor of Records (January 26, 2022). In my January 26th determination I found that the Department provided a supplemental response on January 26th. Unsatisfied with the Department’s response, Attorney Tapply petitioned this office and this appeal, SPR22/0568, 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

Jennifer A. Pratt SPR21/0246 Page 2 February 4, 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. The Department’s January 26th Response On January 26, 2022, the Department provided Attorney Tapply with responsive records. Current Appeal In his appeal, Attorney Tapply suggested that the Division had additional responsive records. In an email dated March 21, 2022, the Department confirmed that there are no additional responsive records to Attorney Tapply’s request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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 Where the Department does not possess any additional records responsive to Attorney Tapply’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Attorney Tapply is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy W. Tapply, Esq.