John York v. Massachusetts Department of Transportation (SPR 20230397)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2023 SPR23/0397 William J. Doyle, Esq. 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 John York appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 3, 2023, Mr. York requested the following records: [1] Any document containing a text description or graphical depiction of or related to MassDOT policy and/or plans and/or actions for snow and ice removal from any sidewalk(s) and/or shared use path(s) in the Cape Cod Canal Area. [2] Any document containing a text description or graphical depiction of or related to MassDOT policy and/or plans and/or actions for snow and ice removal and/or other maintenance of sidewalks on the Bourne Bridge and/or Sagamore Bridge. [3] Any document containing a text description or graphic depiction of MassDOT general policy and/or procedures for snow and ice removal from state owned sidewalks and/or state owned shared use paths. [4] Any contract, memorandum of understanding (MOU) or agreement between MassDOT and the US Army Corps of Engineers (USACE) or among MassDOT, the USACE and others concerning operation of highway(s) or roadway(s) over the Bourne Bridge and/or Sagamore Bridge. [5] The web address (url) for access to any document described in items 1. through 4. above for which the document is accessible via internet. [6] Any MassDOT correspondence to or from the Town of Bourne or the Town of Sandwich or the Town of Wareham concerning snow and/or ice removal from any sidewalk(s) or shared use path(s) in the Cape Cod Canal Area. [7] Any MassDOT correspondence to or from the USACE, the Town of Bourne, or roadway or sidewalk users concerning clearing of snow and/or ice from sidewalks of the Bourne Bridge and/or Sagamore Bridge. 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. SPR23/0359 Page 2 March 14, 2023 [8] Any MassDOT correspondence to or from the US Department of Transportation or the Federal Highway Administration concerning snow and/or ice removal from any sidewalk(s) or shared use paths(s) in the Commonwealth. [9] Any contract, memorandum of understanding (MOU) or agreement between MassDOT and the USACE or among MassDOT, the USACE and others concerning any location or locations where motor vehicles or pedestrians cross or may cross a railroad line or railroad tracks at grade level within the Cape Cod Canal Area. Prior Appeal The requested records were the subject of a prior appeal. Claiming to not yet have received responsive records, on February 22, 2023, Mr. York petitioned the Supervisor of Records (Supervisor) and the prior appeal, SPR23/0359, was opened as a result. Subsequently, on February 22nd, this Office learned that MassDOT provided Mr. York with a response. Where the basis of the prior appeal was opened as a result of MassDOT’s lack of a written response, I considered the administrative appeal closed. I also advised Mr. York that he may appeal the substantive nature of MassDOT’s February 22nd response within ninety (90) days. See SPR23/0359 Determination of the Supervisor (February 24, 2023). Unsatisfied with the February 22nd response, Mr. York petitioned this office and this appeal, SPR23/0359, 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). 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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.

William J. Doyle, Esq. SPR23/0359 Page 3 March 14, 2023 MassDOT’s February 22nd response In its February 22, 2023 response, MassDOT provided the following attachment: “CCC_Bridges_MOU_Fully_Executed_7JUL2020.pdf.” This Office learned that the responsive record pertains to Mr. York’s Request 4. In his appeal petition, Mr. York states, “[a] list of responsive records that I believe exist and are likely to be in the possession or control of MassDO[T] is as follows: Item 4; Item 7, and Item 9.” Subsequent to the opening of this appeal, on March 10, 2023, MassDOT provided Mr. York with a supplemental response, indicating, “[p]lease find attached a [Memorandum of Understanding] (MOU) from June 2018 responsive to item 4 of your request. Also attached are letters concerning clearing of snow from sidewalks responsive to item 6 of your request. MassDOT is finalizing its search for additional documents described in your appeal and will supplement this response if we locate any additional records.” Conclusion Accordingly, whereas MassDOT has provided Mr. York with a supplemental response to his request, and indicated that MassDOT will supplement the response if it locates additional records, I will consider this administrative appeal closed. If unresolved issues remain, Mr. York may appeal the substantive nature of MassDOT’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John York Stephen Shorey, Esq.