Geraldine Mullaly v. Southeastern Regional Transit Authority (SPR 20240286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2024 SPR24/0286 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/3139 Determination of the Supervisor of Records (January 16, 2024). In my January 16th determination, I ordered the Authority to clarify whether it possesses additional records responsive to Parts 1 and 3 of the request. Subsequently, the Authority responded on January 26, 2024, providing additional data responsive to Part 1 of the request, and explaining that it does not possess records responsive to Part 3. Unsatisfied with the Authority’s response, Ms. Mullaly further appealed, and this case 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 SPR24/0286 Page 2 February 14, 2024 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 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. Current Appeal In her appeal petition, Ms. Mullaly contends that she “consider[s] the 01-26-2024, response of [the Authority] to be inaccurate and/or nonresponsive to various points of Item 1 and Item 2.” She further contends that she “still [is] seeking the individual ridership/mileage/fare data, in written/printed/et al reports/documents/exhibits/et al, for Fall River Route 114 (aka FR 14) for FY 2021, FY 2022, and FY 2023.” The Authority’s January 26th Response In its January 26, 2024 response, the Authority provides additional data responsive to Part 1 of the request, and explains that it does not possess additional records responsive to Parts 2 and 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the

Erik B. Rousseau SPR24/0286 Page 3 February 14, 2024 records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a telephone conversation with this office on February 9, 2024, the Authority confirmed that it does not possess additional records responsive to Ms. Mullaly’s request. Conclusion Where the Authority confirmed that it does not possess additional records responsive to Ms. Mullaly’s request, and is not required to create records in response to a request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Geraldine Mullaly