Beth Healy v. Department of Public Utilities (SPR 20222704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2022 SPR22/2704 Patrick M. Houghton, Esq. Counsel I Department of Public Utilities Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: On November 23, 2022, this Office received your petition on behalf of the Department of Public Utilities (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 requestors. Id. On October 27, 2022, Beth Healy requested, “[1] additional pages that go with each of the five Massachusetts Bay Transportation Authority (‘MBTA’) safety audits that were produced on October 20, 2022, in response to a separate request dated September 1, 2022.” On November 3, 2022, Laura Kraegel requested, “[2] any and all investigative reports completed by the Department for [three identified incidents].” On November 7, 2022, Ms. Kraegel requested, “[3] any and all Department approved checklists that are used by the MBTA for accident/investigations associated with 220 CMR 151.09(2)” and “[4] [a]ny and all checklists that are used by the Department to review accident/investigation reports completed by the MBTA associated with the Federal Transit Administration’s 2016 State Safety Oversight Audit of the Department…” The Department in an email dated November 23, 2022 noted that it “is looking for a 20 business day extension from receipt of your office’s determination for all three requests together.” I note that in an email to this office and the Department on November 23, 2022, Ms. Healy opposed the Department’s petition, arguing: [W]e must disagree with the request for more time on #1—that was DPU’s failure to fully respond to an old records request. They provided only partial documents and omitted pages at the end. We’d like them to provide these as soon as possible. On #2 we similarly feel that DPU is already 20 days past being able to provide reports on three completed investigations. (As established with your office and 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

Patrick M. Houghton, Esq. SPR22/2704 Page 2 December 1, 2022 DPU in the past, we are not seeking blueprints or other things they consider proprietary[.]) Copies of completed safety investigations should certainly be available to the public, and it’s unclear why these would not be provided immediately. This information is of great public interest, given the T’s safety problems and scrutiny of DPU in its oversight role. On #3 and #4 we are willing to wait another week… 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). 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 November 23rd petition, the Department states: [C]ertain information within the responsive records, falling under the Department’s oversight of safety regulation, is exempt from disclosure pursuant to [Exemptions (c) and (n)]. The Department has an obligation to ensure that

Patrick M. Houghton, Esq. SPR22/2704 Page 3 December 1, 2022 proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requester. Segregation and redaction of records often involves the application of multiple exemptions to the public records law. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. Accordingly, the information provided in each response must be consistently segregated and redacted to secure the safety of persons and public places before the records are produced to the requesters. In addition, the Department must coordinate all three responses with its Secretariat, the Executive Office of Energy and Environmental Affairs, before sending them to the requesters, which takes additional time. Thus, the Department requests extensions of time so that it can respond to the requests consistently and uniformly without having to provide piecemeal, consecutive responses. Item # 1 In light of Ms. Healy’s rebuttal, the Department must clarify whether the October 27, 2022 request is a new request or pertains to the September 1, 2022 request. If the October 27th request pertains to the September 1st request, this current petition is untimely. An extension of time cannot be granted regarding this request if the Department has not submitted a timely petition. 950 C.M.R. 32.06(4)(d). Items # 2, 3 and 4 Regarding Items # 2, 3, and 4, 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 20 business days to furnish copies of records responsive to Ms. Kraegel’s requests. See G. L. c. 66, § 10(c). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted an extension of 20 business days to furnish copies of records responsive to Items # 2, 3 and 4. Further, the Department must clarify whether the October 27, 2022 request is a new request or pertains to the September 1, 2022 request. I encourage the parties to communicate further to enable the Department to provide records in an efficient manner. To the extent possible, the Department must provide responsive records on a rolling basis. Please note the requestor 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(c)(vi).

Patrick M. Houghton, Esq. SPR22/2704 Page 4 December 1, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Beth Healy Laura Kraegel