John York v. Massachusetts Department of Transportation (SPR 20232348)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2023 SPR23/2348 William J. Doyle, Esq. Records Access Officer Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of John York appealing the response of the Department of Transportation (Department/MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 7, 2023, Mr. York requested the following: 1. Agendas and minutes of MassDOT Design Exception Review Committee meetings from June 23, 2023, to the present. 2. Any documents related to MassDOT Project 610542 submitted to or received by the Design Exception Review Committee after June 2, 2023, the date of [Mr. York’s] previous records request P000906-061223. 3. Any documents related to MassDOT Project 610542 generated by the Design Exception Review Committee after June 2, 2023, including, but not limited to any summaries, decisions, conclusions or recommendations. 4. Any presentation, information packet or other documents related to Project 610542 provided to Design Exception Review Committee members after June 2, 2023. 5. Any Design Exception Request for MassDOT Project 610542, or any documents or materials relevant to any Design Exception Request for MassDOT Project 610542, submitted to or received by the MassDOT Highway Administrator or the Highway Administrator’s office after April 12, 2023. 6. Any documents or materials or created or issued by the MassDOT Highway Administrator or the Highway Administrator’s office as part of or in response to a Design Exception Request for MassDOT Project 610542 submitted to the Highway Administrator on April 12, 2023, or as part of or in response to any subsequent Design Exception Request for MassDOT Project 610542 submitted after April 12, 2023, including but not limited to any approval, denial, referral, postponement, dismissal or waiver of any such Design Exception Request. 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. SPR23/2348 Page 2 October 17, 2023 7. CDs, plans and specifications for MassDOT Project 610542, the availability of which is described in the MassDOT Advertised Projects Bid Opening Schedule at [a specified] internet url address. The Department responded on September 7, 2023, providing numerous responsive records. Unsatisfied with the Department’s response, and claiming the Department possesses additional responsive records, Mr. York 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). 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. Current Appeal In his appeal petition, Mr. York contends that he “received a response from the MassDOT Records Center ... containing url links to documents responsive to [his request]. The response contained documents responsive to several items of the request, but did not include any documents responsive to items 6. or 7.” He further contends “that there may be an additional correspondence document or documents responsive to request item 6, and requesting that the Records Office provide the known responsive document and provide the alleged correspondence documents, if any, or confirm that such correspondence was not in the possession of MassDOT.” He also argues “that MassDOT had not yet provided the documents requested in item 7 of [his] request.” The Department’s September 7th Response In its September 7, 2023 response, the Department provides numerous responsive records. Additionally, the Department explains that “the Highway Administrator approved an

William J. Doyle, Esq. SPR23/2348 Page 3 October 17, 2023 exception to the Healthy Transportation Policy for this project on August 7, 2023; it is [the Department’s] understanding that [Mr. York was] provided with the unapproved version of this, so the only difference is the signature by [the Highway Administrator].” The Department is advised that 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). Based on the Department’s September 7th response, and information provided in Mr. York’s appeal petition, it is unclear if the Department possesses additional records responsive to Mr. York’s request. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. York with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its 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: John York