Peter Griffin v. Massachusetts Department of Transportation (SPR 20232878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2023 SPR23/2878 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 Peter Griffin 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 September 20, 2023, Mr. Griffin requested, “a copy of any permits, contracts, and plans for the current work on the emergency off ramp and new structure installed over I90 near the emergency off ramp near Edgell rd… Also, any drainage work or work behind the structure at the bottom of the emergency ramp and work to expand the I90 highway near it.” The Department responded on September 26, 2023. Unsatisfied with the response, Mr. Griffin petitioned this office and this appeal, SPR23/2878, 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(d)(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). 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. SPR23/2878 Page 2 December 12, 2023 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 September 26th Response In its September 26, 2023 response, the Department asked Mr. Griffin to clarify his request and stated, “[i]n reviewing [Mr. Griffin’s] request, [the Department] has indicated that there are multiple items being referenced at this location. There is: (1) the I-90 bridge over Edgell Road, (2) a toll gantry, (3) a snow ramp, (4) a culvert, and (5) work to expand the I90 highway near it. It would be helpful in assisting [the Department] search for the requested documents if [Mr. Griffin] could clarify [his] request by indicating what specific documents [he is] requesting in connection with each of the five groups set forth in the preceding sentence. In addition, please clarify that portion of your request regarding ‘any draining work or work behind the structure at the bottom of the emergency ramp and work to expand the I90 highway near it.’” Current appeal On November 9, 2023, Mr. Griffin reiterated his records request to the Department and stated, “[p]lease accept this as a new request for the same documents. The google map location [the Department] sent is correct but the project crossed over onto the west side of Edgell Road and onto the pike property. There is a Mass Pike small building that has wiring running between the fast lane toll that crosses the highway.” In his appeal, Mr. Griffin states, “[the Department] has not sent these documents… The project area and scope of work they have performed is very clear and recent.” In its response, the Department has not denied Mr. Griffin any access to records, but is seeking clarification regarding the scope of his request. Please be advised that it is valid for the custodian of records to suggest a “reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). In accordance with the Public Records Law, 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). 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), (b)(ii). Given that the Department has stated there are “multiple items being referenced” in the request, Mr. Griffin is encouraged to provide the Department with the needed clarification regarding the records he now seeks. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought).

William J. Doyle, Esq. SPR23/2878 Page 3 December 12, 2023 Conclusion Upon clarification, the Department must provide a response to Mr. Griffin in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, Manza Arthur Supervisor of Records cc: Peter Griffin