Mikhael El-Bayeh v. Massachusetts Department of Transportation (SPR 20230798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 4, 2023 SPR23/0798 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 Mikhael El-Bayeh 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 March 31, 2023, Mr. El-Bayeh requested records, specifically: Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records as defined by G. L. c. 4, § 7 [26], discussing, interpreting, mentioning, or otherwise related to, in whole or in part, the criteria for making, amending, or rescinding a special regulation, and for determining whether the same is consistent with the public interests, as such powers are laid out in G. L. c. 90, §18, as amended by St. 2022, c. 358, §13, par. 1-4; and, Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records as defined by G. L. c. 4, § 7 [26], discussing, interpreting, mentioning, or otherwise related to, in whole or in part, the petitioning procedure, and MassDOT’s approval or denial of such petitions, as such powers are laid out in G. L. c. 90, §18, as amended by St. 2022, c. 358, §13, par. 5.” On March 18, 2023, MassDOT acknowledged the request, and provided a reference number for tracking purposes. On March 31, 2023, the Department informed Mr. El-Bayeh “[d]uring our initial search in an attempt to comply with your request, it has been determined that the amount of records is beyond the basic purpose and intent of the [P]ublic [R]ecords [L]aw. Pursuant to 950 C.M.R. 32.06(1)(b) and Massachusetts General Laws, Chapter 66, Section 10(a)(1) requests for public records shall include a reasonable description of the requested record to the records access officer so that he or she can identify and locate it promptly.” 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. SPR23/0798 Page 2 May 4, 2023 In an April 2, 2023 message from Mr. El-Bayeh to MassDOT, he stated, “[t]he request is hereby narrowed to records created between 10/1/2022 and 3/31/2023, inclusive.” On April 10th, MassDOT’s Records Access Officer, William Doyle, Esq. explained, “[o]ur response is due today, but I am informing you that although I have almost finished my review of the responsive emails, they are awaiting a final review for any matters that remain part of any ongoing deliberation and, therefore, potentially exempt. I can confirm that there will be over one hundred emails that will be released, but I have not been provided a firm timeline for review completion. If possible; however, I will provide them to you on a rolling basis so that I can get you something this week.” Due to MassDOT not providing any further response or responsive records, on April 25th, Mr. El-Bayeh petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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. Timeline for providing records MassDOT’s April 10th response indicates that they need additional time to review the responsive emails; however, it is unclear when MassDOT intends to provide Mr. El-Bayeh with any of the records. See G. L. c. 66, § 10(b)(vi) (records access officer may 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 for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and

William J. Doyle, Esq. SPR23/0798 Page 3 May 4, 2023 provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein). To date, it is unclear whether MassDOT has completed its final review of the records, and whether MassDOT has begun to provide the records on a rolling basis. MassDOT must clarify this matter. Based on MassDOT’s responses, it is unclear whether MassDOT has additional records, other than emails, that are responsive to Mr. El-Bayeh’s request. Conclusion Accordingly, MassDOT is ordered to provide Mr. El-Bayeh with a response to his request in a manner consistent with the Public Records Law, and its Regulations within ten (10) 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: Mikhael El-Bayeh