Mikhael El-Bayeh v. Massachusetts Department of Transportation (SPR 20231052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2023 SPR23/1052 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: On May 17, 2023, this office received your petition on behalf of the Massachusetts 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, Mikhael El-Bayeh. Id. On March 18, 2023, Mr. El-Bayeh requested: 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/0798 Determination of the Supervisor of Records (May 4, 2023). In my May 4th determination, I ordered the Department to 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. SPR23/1052 Page 2 May 23, 2023 provide Mr. El-Bayeh with a response to his request within ten (10) business days. Subsequently, the Department petitioned this office on May 17, 2023 seeking an extension of time. 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 May 17th petition, the Department seeks “an extension of fifteen (15) business days to produce the responsive records.” In support of its request, the Department asserts: In this instance, we can confirm that the records to be produced consist of several hundred pages of emails, plus attachments, and although we have completed our review for those that are responsive to the request, we are in the process of reviewing for both applicable exemptions and privilege; the primary review remaining to date involves whether any of these communications are part of an ongoing policy discussion and possibly exempt under G.L. c. 4 § 7(26)(d).

William J. Doyle, Esq. SPR23/1052 Page 3 May 23, 2023 The Department further contends that an extension of time is warranted given, “[t]he scope of review for these records, the volume of other requests MassDOT is currently handling, as well as staffing efforts needed to comply with these requests.” Conclusion I find that in light of the need to search for, collect, segregate and examine the records, and the capacity of the Department to produce the request without the extension, 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 15 business days to furnish copies of records responsive to Mr. El-Bayeh’s request. See G. L. c. 66, § 10(c). Please note, Mr. El-Bayeh 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: Mikhael El-Bayeh