Gerrit Blauvelt v. Massachusetts Department of Transportation (SPR 20222814)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 16, 2022 SPR22/2814 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Gerrit Blauvelt appealing the response of the 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 August 25, 2022, Mr. Blauvelt requested communications regarding the Hariman-and-West Airport, beginning January 1, 2021. Previous Appeal This request was the subject of a previous appeal. See SPR22/2268 Determination of the Supervisor of Records (October 21, 2022). In my October 21st determination, I ordered the Department to provide Mr. Blauvelt with a response to his request. Subsequently, the Department responded on October 21, 2022. Following further correspondence, Mr. Blauvelt narrowed the scope of his request, and on November 3, 2022, the Department indicated it would begin providing records, potentially on a rolling basis. Having received no further communications from the Department, Mr. Blauvelt appealed, and this case 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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. SPR22/2814 Page 2 December 16, 2022 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. Att’y 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. The Department’s November 3rd Response In its November 3, 2022 response, the Department states that it “will continue to review the emails ... and will endeavor to provide anything ... related the Master Plan.” The Department goes on to state that if “unable to simply provide all of the records by the end of next week, [the Department] will begin a rolling production so as not to delay the response any further.” I understand Mr. Blauvelt has received no further response from the Department. G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records ... and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas the request from Mr. Blauvelt was submitted on August 25, 2022, and the Department has not provided a timeframe in which it intends to produce further records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Mr. Blauvelt with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its

William J. Doyle, Esq. SPR22/2814 Page 3 December 16, 2022 Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Gerrit Blauvelt