Geraldine Mullaly v. Southeastern Regional Transit Authority (SPR 20233139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2024 SPR23/3139 Erik B. Rousseau Records Access Officer Southeastern Regional Transit Authority 700 Pleasant Street, Suite 320 New Bedford, MA 02740 Dear Mr. Rousseau: I have received the petition of Geraldine Mullaly appealing the response of the Southeastern Regional Transit Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 23, 2023, Ms. Mullaly made the following request: [1.] Previously [the Authority] provided data relevant to ridership for the Fall River to Swansea and vice versa route. As the construction on Davol Street has affected same, placing more mileage on the Somerset portion, I am requesting the most current data for ridership, mileage, and fare intake for Route 114. [2.] Attached is a document that states that Route 114 information was effective as of August 2023. (Refer to bottom left-hand corner of each document) I believe SRTA’s paperwork needs review. [3.] ... [T]he By-Laws/Constitution/Agreements/etc. which dictate the terms of participation/membership of cities/towns in SRTA or any other transit bus service. Please provide any/all sections which outline how participation/ membership can be terminated. The Authority responded on November 30, 2023, seeking clarification to Part 1 of the request, answering Part 2, and providing records responsive to Part 3 of the request. Following further correspondence, and unsatisfied with the Authority’s response, Ms. Mullaly 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 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

Erik B. Rousseau SPR23/3139 Page 2 January 16, 2024 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. Attorney 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 Authority’s November 30th Response In its November 30, 2023 response, the Authority asks that Ms. Mullaly provide a time period for Part 1 of her request. Second, the Authority provides an answer to the question posed in Part 2. Finally, the Authority provides records responsive to Part 3 of the request. No Duty to Answer Questions, Conduct Research, Create Documents Please be 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). In a November 30, 2023 email to the Authority, and in her appeal petition, Ms. Mullaly clarifies that for Part 1 of the request, she is seeking records “from 2021 to present.” She raises further concerns about the accuracy of the answer provided to Part 2. Additionally, she clarifies that for Part 3 she is “seeking the official documents which specify the steps a Town must initiate/complete in order to sever service with SRTA/MBTA/et al.” Please note that the Authority is not required to answer questions, or conduct research, or create records in response to Part 2 of the request. However, based on the clarification provided in Ms. Mullaly’s November 30th email, it is unclear whether the Authority possesses additional records responsive to Part 1 and Part 3 of the request. The authority must clarify this.

Erik B. Rousseau SPR23/3139 Page 3 January 16, 2024 Conclusion Accordingly, the Authority is ordered to provide Mr. Mullaly 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: Geraldine Mullaly Arthur Frank, Esq.