Laura Crimaldi v. Department of Public Utilities (SPR 20240105)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 26, 2024 SPR24/0105 Mathieu Cunha, Esq. Legal Division Department of Public Utilities One South Station Boston, MA 0211 Dear Attorney Cunha: I have received the petition of Laura Crimaldi, of the Boston Globe, appealing the response of the Department of Public Utilities (Department) to the request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2023, Ms. Crimaldi requested the following records: [1.] Records submitted by the MBTA to the Department of Public Utilities explaining delays in reporting near-miss incidents to the MBTA Safety Department and Department of Public Utilities since Aug. 1, 2023 in accordance with the Federal Transit Administration’s immediate action letter of Sept. 14, 2023[.] The Department responded on September 22, 2023 and December 28, 2023. Unsatisfied with the responses, Ms. Crimaldi petitioned this office and this appeal, SPR24/0105, 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); 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 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

Mathieu Cunha, Esq. SPR24/0105 Page 2 January 26, 2024 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 Department’s Responses In its September 26, 2023 response, the Department stated, “[o]n September 22, 2023, the Massachusetts Department of Public Utilities received your public records request dated September 21, 2023. We are currently looking into your request, and will respond promptly.” In its December 28, 2023 response, the Department advised, “[t]he requests you cited are currently under administrative review. We will provide you with the substantive responses as soon as practicable.” Timeliness of providing records 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 an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a 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 it appears Ms. Crimaldi submitted her request on September 21, 2023, it is unclear why the Department has not provided the responsive records. 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay).

Mathieu Cunha, Esq. SPR24/0105 Page 3 January 26, 2024 Conclusion Accordingly, the Department is ordered to provide Ms. Crimaldi with a response to her 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. Ms. Crimaldi may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Crimaldi