Laura Crimaldi v. Department of Public Utilities (SPR 20240107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 26, 2024 SPR24/0107 Mathieu Cunha Records Access Officer Department of Public Utilities One South Station, 5th Floor Boston, MA 02110 Dear Mr. 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 July 24, 2023, Ms. Crimaldi requested: [1] Any/all notices of state reportable incident reports submitted by the Massachusetts Bay Transportation Authority as required under 220 CMR 151.00 from Jan. 1, 2023 to July 24, 2023; [2] Any/all final reports regarding state reportable incident reports submitted by the Massachusetts Bay Transportation Authority as required under 220 CMR 151.00 for incidents that occurred from Jan. 1, 2023 to July 24, 2023; and [3] Any/all corrective action plans regarding state reportable incident reports submitted by the Massachusetts Bay Transportation Authority as required under 220 CMR 151.00 for incidents that occurred from Jan. 1, 2023 to July 24, 2023. Previous Petition This request was the subject of a previous petition from the Department. See SPR23/1831 Determination of the Supervisor of Records (August 11, 2023). In my August 11th determination, I found that the Department had established good cause for a time extension of 20 business days. Subsequently, the Department responded on December 28, 2023, indicating it would require additional time to provide records. Unsatisfied with the Department’s response, Ms. Crimaldi 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

Patrick M. Houghton, Esq SPR24/0107 Page 2 January 26, 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 Department’s December 28th Response In its December 28, 2023 response, the Department states that “the requests [Ms. Crimaldi] cited are currently under administrative review. [The Department] will provide [her] with the substantive responses as soon as practicable.” The Department is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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 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. Crimaldi submitted her request on July 24, 2023, and the Department was granted an extension of 20 business days by this office on August 11, 2023, and the Department has not yet provided responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10. Consequently, 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 provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis.

Patrick M. Houghton, Esq SPR24/0107 Page 3 January 26, 2024 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 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: Laura Crimaldi