Laura Crimaldi v. Department of Public Utilities (SPR 20240106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 25, 2024 SPR24/0106 Mathieu Cunha, Esq. Legal Division Department of Public Utilities One South Station Boston, MA 02110 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 a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 14, 2023, Ms. Crimaldi, requested: [1] July 23, 2023: Trolley derailment at Riverside Yard; [2] August 1, 2023: High-rail truck derailment between Kendall and Central stations on the Red Line; [3] August 3, 2023: Injury of two signal maintainers at Quincy Center Station; [4] March 28, 2022: Electrocution of system repairer working near the third rail (Corrective Action Plan 8401); [5] July 25, 2022: Unintentional movement of Red Line train into Braintree station. Prior Petition This request was the subject of a prior petition. See SPR23/2030 Determination of the Supervisor of Records (September 1, 2023). In my September 1st determination, I found that the Town had established good cause for a time extension of 20 business days to provide copies of the records. The Department provided a response on December 28, 2023. Unsatisfied with the response, Ms. Crimaldi petitioned this office and this appeal, SPR24/0106, 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 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. SPR24/0106 Page 2 January 25, 2024 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 Department’s December 28th Response In its December 28, 2023 response, the Department stated, “[t]he requests [Ms. Crimaldi] cited are currently under administrative review. We will provide [her] with the substantive responses as soon as practicable.” Possession, Custody, or Control The Department is 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). 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). Based on the Department’s December 28th response, it is unclear whether the Department possesses records responsive to Ms. Crimaldi’s request. The Department must clarify this. Timeline for providing public 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 municipality such that the municipality cannot provide records within 10 business days, the 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…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…following the initial receipt of the request for public records; and provided further, that the requestor may

Mathieu Cunha, Esq. SPR24/0106 Page 3 January 25, 2024 voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Although the Department received an extension of 20 business days on September 1, 2023, where Ms. Crimaldi is yet to receive the requested records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Department must provide Ms. Crimaldi with an estimated date as to when it expects to provide the requested records. See G. L. c. 66, § 10(a) (records must be 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. Crimaldi with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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