Mikhael El-Bayeh v. Massachusetts Department of Transportation (SPR 20240469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2024 SPR24/0469 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Mikhael El-Bayeh appealing the response of the Department of Transportation (Department/MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2024, Mr. El-Bayeh requested: [1] Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records…related to, in whole or in part, the criteria for making, amending, or rescinding a special regulation, and for determining whether the same is consistent with the public interests…[;] [2] Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records… related to, in whole or in part, the petitioning procedure, and MassDOT’s approval or denial of such petitions…[;] [3] Records associated with speed management group meetings[;] [4] Most recent available INRIX probe data for U.S. Route 3, without regard to the date range applicable to the first three parts of this request. Previous Petition This request was the subject of a previous petition from the Department. See SPR24/0396 Determination of the Supervisor of Records (February 14, 2024). In my February 14th determination, I found that it was unclear whether the Department’s February 6th response met the requirements under G. L. c. 66, § 10(b) to assess a fee, and I ordered the Department to demonstrate that it provided a response in compliance with G. L. c. 66, § 10(b). Concurrent with its February 6, 2024 petition to this office, the Department also responded to Mr. El-Bayeh. Unsatisfied with the Department’s February 6th response, Mr. El-Bayeh 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

William J. Doyle, Esq. SPR24/0469 Page 2 February 27, 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 his appeal petition, Mr. El-Bayeh contends the following: As MassDOT admits, it has located but failed to produce any records responsive to Part 1 and Part 2 [of] the request. [He is] further appealing MassDOT’s deficient response to Part 3 and Part 4 of the request. With regard to Part 3, based on similar prior requests, the responsive records should include, at a minimum, scheduling records and internal correspondence related to the meetings. The public website linked in the initial response does not include these records. With regard to Part 4, while MassDOT may not be required to make a new query to the external party, it must, at a minimum, confirm that it does not currently have responsive records received from prior queries. [He is] requesting that [the Supervisor’s] office order MassDOT to produce all responsive records without further delay, free of charge. The Department’s February 6th Response In its February 6, 2024 response, the Department explains that it has submitted a petition to charge fees, has compiled records responsive to Parts 1 and 2 of the request, and may have records responsive to parts 3 and 4 of the request.

William J. Doyle, Esq. SPR24/0469 Page 3 February 27, 2024 Parts 1 and 2 of the Request In its February 6th response, the Department indicates that it has submitted a petition to charge fees, and states the following in regard to Parts 1 and 2 of the request: [The Department has] compiled the records you have requested for Requests 1 and 2, but not their review, and have determined that the completion of your request is estimated to take a total of 15 hours. The research and compilation of these records has taken 3 hours, and as the public records law provides that the first 4 hours be completed without charge, there would be an additional 11 hours of work remaining. With regard to Mr. El-Bayeh’s objections concerning Parts 1 and 2 of his request, please be advised that where the Department has yet to produce the records, and it remains unclear whether the Department may charge a fee, I find this matter cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. El-Bayeh may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Parts 3 and 4 of the Request In its February 6th response, the Department states that “with regard to ... Request 3, MassDOT has contacted the appropriate records holders and, after their search, any records responsive would be available [at a specified link].” Additionally, the Department states that “specifically with regard to Request 4, INRIX is a service [the Department] subscribe[s] to, but they have the data.” 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). Additionally, 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). 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 February 6th response, and the information provided in Mr. El-Bayeh’s appeal, it is unclear whether the Department possesses records responsive to Parts 3 and 4 of the request. If the Department does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”).

William J. Doyle, Esq. SPR24/0469 Page 4 February 27, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. El-Bayeh 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: Mikhael El-Bayeh