Howard Lenow v. Massachusetts Department of Transportation (SPR 20221995)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 2, 2022 SPR22/1995 Stephen W. Shorey, Esq. Senior Counsel, Public Records and Records Management Massachusetts Department of Transportation MassDOT/MBTA Office of General Counsel 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Shorey: I have received your petition on behalf of the Department of Transportation (Department) seeking an extension of time to produce records. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Howard B. Lenow, Esq. Id. In a letter dated August 29, 2022, Attorney Lenow requested “health and safety concerns in…Buildings 2 and 3 [in] the Charlestown Campus.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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

Stephen W. Shorey, Esq. SPR22/1995 Page 2 September 2, 2022 If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition dated August 29, 2022, the Department seeks an extension of 10 business days to produce records. The Department states, “…due to the need to review records for exempt information, the volume of requests the MBTA is currently handling, as well as staffing efforts needed to comply with these requests, an extension of time is warranted. See G.L. c. 66, s. 10(c)(ii)-(iv) (outlining the factors to consider when determining good cause).” Conclusion In light of the above, I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 10 business days to furnish copies of records responsive to Attorney Lenow’s request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. Please note, Attorney Lenow has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4),10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Howard B. Lenow, Esq.