Chesley Oriel v. Massachusetts Department of Transportation (SPR 20232791)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2023 SPR23/2791 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 Chesley Oriel, Esq., of the Law Offices of Goldberg & Oriel, appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 14, 2023, Attorney Oriel requested the following records: [1] The name and address of any person or entity that has requested any information relative to a motor vehicle purchased by: [an identified individual] and specifically a 2023 Subaru Forester, since January 1, 2023 to the present date. [2] The process by which the Registry of Motor Vehicles provides the name and address of any purchaser of a new motor vehicle to any person or entity during the period of January 1, 2023 to the present date. [3]The manner in which the Registry of Motor Vehicles provides an ongoing disclosure of information to any person or entity who has an ongoing request to obtain information from the Registry of Motor Vehicles regarding the sale of new motor vehicles in Massachusetts since January 1, 2023 to the present date. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2347 Determination of the Supervisor of Records (October 17, 2023). In my October 17th determination, I closed the appeal after I learned that the Department intends on providing Attorney Oriel with a response. Subsequently, the Department provided a response on November 7, 2023. Unsatisfied with the Department’s response, Attorney Oriel appealed, and this case was opened. 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. SPR23/2791 Page 2 December 4, 2023 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. The Department’s November 7th response On November 7, 2023, the Department provided Attorney Oriel with an Excel spreadsheet. The Department asserts, “[t]here seems to be some confusion with regard to the spreadsheet provided. This email should confirm that the spreadsheet provided is the only responsive record we have with regard to your first request; this spreadsheet indicates the type of entity that accessed the information with regard to the subject vehicle, as well as the date and time of the access; there are no other records.” In Attorney Oriel’s petition, he asserts, “I am at a loss to understand how the [Department’s] response is responsive to my Public Records [r]equest. Surely they know who was given the information that is the subject of my request…” Subsequent to the opening of the appeal, the Department provided a November 29, 2023 response with a revised production of the record previously produced. In its November 29th response to Attorney Oriel, the Department stated: …please find the last record we were able to compile that is responsive to your request. There is no obligation under the [P]ublic [R]ecords [L]aw to create a record; pursuant to 950 C.M.R. 32.07(1)(f), however, an extract of existing data is not considered the creation of a new record. To that end, we asked for a query to be written to extract the identity of the individual or company that accessed the data, and added that to the spreadsheet previously provided. We can confirm that

William J. Doyle, Esq. SPR23/2791 Page 3 December 4, 2023 there are no additional records that would be responsive to your request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the Department provided Attorney Oriel with the only record in its possession that is responsive to Item 1 of the request, and indicates it has no additional records, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Chesley Oriel, Esq.