Peter Brown v. Massachusetts Bay Transportation Authority (SPR 20240522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2024 SPR24/0522 Christopher M. F. Smith, Esq. Senior Lead Counsel, Corporate & Ethics Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Smith: On February 16, 2024, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA/Authority) seeking an extension of time to produce records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Authority furnished a copy of the petition to the requestor, Peter Brown. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 26, 2024, Mr. Brown requested the following records: Documents that are referenced in and incorporated into the Commuter Rail Operating Agreement between MBTA and Keolis under Appendix 1 - Required Submittals: [1] ODRL 3.2-069 (FRA Test compliance Report). Monthly reports from 1/1/18 through 12/31/20[;] [2] ODRL 3.5-001 (safety incident reporting & review process submittal). Document was due within 60 days after the Notice to Proceed ("NTP") pursuant to the Operating Agreement[;] [3] ODRL 3.2-024 (station inspection submittal form). Document was due within 90 days after NTP[;] [4] ODRL 3.2-074 (preliminary grade crossing event recorder program submittal). Document was due within 120 days after NTP. 5. ODRL 3.2-009 (annual grade crossing inspection report)[;] [5] All annual reports from the date of the MBTA/Keolis contract through the present. Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a 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

Christopher M. F. Smith, Esq. SPR24/0522 Page 2 February 21, 2024 single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. -- The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the Authority respectfully requests “an extension of 20 business days to respond and/or produce responsive records.” In support of its request, the Authority provides the following information: [T]he request consists of a large volume of records to be compiled. The records in question are also part of a larger, prior discovery request in litigation, which is still in process. The same staff members that would be compiling records in response to this request are those compiling records under the discovery request. [T]his context combined with the volume of public records requests the MBTA is currently handling, as well as staffing efforts needed to comply with this request, an extension of time is warranted. In light of the need to collect, segregate and examine the records, as well as the capacity of the Authority to produce the records without an extension, the Authority has established good

Christopher M. F. Smith, Esq. SPR24/0522 Page 3 February 21, 2024 cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The Authority is granted an extension of 20 business days. Conclusion As described above, I find that the Authority has established good cause for a time extension of 20 business days. Please note, Mr. Brown has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, §§ 10(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Peter Brown