Marwan Zubi v. Massachusetts Department of Transportation (SPR 20232181)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2023 SPR23/2181 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Marwan S. Zubi, Esq., of Nicolai Law Group, P.C., appealing the response of the Department of Transportation (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 18, 2023, Attorney Zubi requested: [1] All concrete batch tickets and field test reports for all concrete used on sidewalks on the DOT construction projects identified (by contract number, district and location) [in a specified list]. [2] All concrete mix designs for all concrete used on sidewalks on the DOT construction projects identified (by contract number, district and location) [in a specified list]. Previous Appeal This request was the subject of a previous appeal. See SPR23/1843 Determination of the Supervisor of Records (August 22, 2023). In my August 22nd determination, I ordered the Department to provide a response to the request. Subsequently, the Department provided responses on August 23, 2023 and September 5, 2023. Unsatisfied with the Department’s responses, Attorney Zubi petitioned this office and this appeal, SPR23/2181, 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 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. SPR23/2181 Page 2 September 26, 2023 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); 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). 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. Current appeal In his appeal, Attorney Zubi states that the Department “has only provided a fraction of the records requested without letting [him] know when [he] can expect the rest.” The Department’s August 23rd and September 5th responses In both its August 23, 2023 and September 5, 2023 responses, the Department provided Attorney Zubi with records responsive to his request. Unclear if additional records exist Although the Department provided Attorney Zubi with records, based on his appeal, it is unclear if the Department possesses additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Attorney Zubi with a response to the request, provided in a manner consistent with this order, 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.

William J. Doyle, Esq. SPR23/2181 Page 3 September 26, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Marwan S. Zubi, Esq.