Sean Murphy v. Massachusetts Bay Transportation Authority (SPR 20232540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 7, 2023 SPR23/2540 Julie Ciollo, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Sean Murphy, of the Boston Globe, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2023, Taylor Dolven, of the Boston Globe, requested the following: [1.] Copies of geometry testing results, including track gauge, before trains went into service on the Union Square branch of the Green Line extension. ... any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. [2.] Copies of geometry testing results, including track gauge, before trains went into service on the Medford/Tufts branch of the Green Line extension. ... any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. [3.] Copies of all geometry testing results, including track gauge, since passenger service began on the Union Square branch and the Medford/Tufts branch. ... any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. [4.] Certificates of compliance for all track components on the Green Line extension. [5.] All emails to or from [a named individual] with the keyword “GLX” from Oct. 1, 2022 through Dec. 15, 2022. 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

Julie Ciollo, Esq. SPR23/2540 Page 2 November 7, 2023 [6.] All change orders to the Green Line extension contract with GLX Constructors. The MBTA responded on October 16, 2023, indicating it would require an additional five business days to respond. Having received no further response, Mr. Murphy 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. The MBTA’s October 16th Response In its October 16, 2023 response, the MBTA states the following: [T]he search for and review of responsive records continues and may not be complete within 10 business days from the date of your request. As a result, [the MBTA] may extend the time to respond to [the] initial request by up to an additional five (5) business days from our receipt or, October 23, 2023. The MBTA is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: 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

Julie Ciollo, Esq. SPR23/2540 Page 3 November 7, 2023 provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Dolven submitted her request on September 29, 2023, and the MBTA has not provided responsive records, nor cited an exemption for withholding records, I find the MBTA has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the MBTA must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the MBTA must provide responsive records on a rolling basis. Conclusion Accordingly, the MBTA is ordered to provide Mr. Murphy with a response to the 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: Sean Murphy