Elise Lambert v. Massachusetts Department of Transportation (SPR 20232921)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 14, 2023 SPR23/2921 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Elise Lambert, on behalf of the Committee for Public Counsel Services, appealing the response of the 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 October 24, 2023, Ms. Lambert requested the following records: [1.] All policies, procedures, trainings and any other documents regarding how routine traffic citations are entered into the DOT’s database. [2.] All policies, procedures, trainings and any other documents instructing law enforcement agencies on how to fill out and submit traffic citations to MassDOT. The Department provided a response on November 8, 2023. Unsatisfied with the response, Ms. Lambert petitioned this office and this appeal, SPR23/2921, 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). 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. SPR23/2921 Page 2 December 14, 2023 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. Current appeal In her appeal, Ms. Lambert states that she “requested an update on the status of this request and DOT requested an extension of time,” but that “[a]fter the requested extension had elapsed … [she] did not receive a response to this inquiry.” The Department’s November 8th response In its November 8, 2023 response, the Department states that it “may extend the time to respond to [Ms. Lambert’s] initial request by up to an additional five (5) business days from [its] receipt.” Timeframe for responding to a request G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the 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 a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and 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. Lambert’s request was submitted on October 24, 2023, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department 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

William J. Doyle, Esq. SPR23/2921 Page 3 December 14, 2023 provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Ms. Lambert 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. Sincerely, Manza Arthur Supervisor of Records cc: Elise Lambert