Caroline E. Smith v. Massachusetts Port Authority (SPR 20240055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0055 Christina Gibson Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Gibson: I have received the petition of Caroline E. Smith, Esq., of McGregor Legere & Stevens PC, appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2023, Attorney Smith requested records “regarding the L.G. Hanscom Field North Airfield Development in Bedford, Massachusetts.” Specifically, Attorney Smith requested: 1. All documents regarding the Project by and between MassPort and: a. the Proponents; b. VHB; c. Signature Flight Support; d. UDA Architects; e. Kinton Aviation; and f. Lord Environmental, Inc. 2. All documents concerning: a. the proposed land transfers between MassPort and the Proponents relating to the Project; b. MassPort’s August 2021 Request for Proposals for the development of the North Airfield that was awarded to the Proponents; c. the ‘reduc[tion of] overall aircraft trips’ referenced in the Proponents’ Environmental Notification Form, as a result of the Project; and d. the future managers, owners, or operators of the finished Project. 3. L.G. Hanscom Airport – Airport Layout Plan dated January 25, 2022. 4. Contracts and agreements executed with any contractor, consultant, or 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

Christina Gibson SPR24/0055 Page 2 January 19, 2024 company,including the Proponents, VHB, Signature Flight Support, UDA Architects, Kinton Aviation, and Lord Environmental, Inc. concerning the Project. The Authority provided responses on November 1, 2023 and December 5, 2023. Unsatisfied with the responses, Attorney Smith petitioned this office and this appeal, SPR24/0055, 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) (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). The Authority’s November 1st and December 5th responses In its November 1, 2023 response, the Authority states that it is “in the process of locating public records responsive to [Attorney Smith’s] request, subject to exemption or privilege” and that it “will make responsive public records available to [Attorney Smith] as soon as possible.” The Authority further states that Attorney Smith “may be required to pay the reasonable cost of responding to [her] public records request.” In its December 5, 2023 response, the Authority provides Attorney Smith with four records responsive to her request. The Authority states that it is “in the process of conducting a search for the remaining requested documents” and that “[a]s this request is very extensive, the search process may take some time.” The Authority further states that once it “has a better idea of the estimated volume of records applicable, [it] will provide [Attorney Smith] with a written estimate of the cost of providing additional records.” 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

Christina Gibson SPR24/0055 Page 3 January 19, 2024 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 Attorney Smith’s request was submitted on October 20, 2023, I find the Authority has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Authority 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 Authority must continue to provide responsive records on a rolling basis. Conclusion Accordingly, the Authority is ordered to provide Attorney Smith 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: Caroline E. Smith, Esq.