Karen Hill Bewersdorff v. Massachusetts Port Authority (SPR 20240710)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2024 SPR24/0710 Christina Gibson Public Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Gibson: I have received the petition of Karen Hill Bewersdorff appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2024, Ms. Bewersdorff requested CCTV footage of herself. Previous appeal This request was the subject of a previous appeal. See SPR24/0623 Determination of the Supervisor of Records (March 6, 2024). The Authority responded on March 6, 2024. Unsatisfied with the Authority’s response, Ms. Bewersdorff petitioned this office and this appeal, SPR24/0710, 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 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

Christina Gibson SPR24/0710 Page 2 March 20, 2024 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 Authority’s March 6th response In its March 6, 2024 response, the Authority asserted, “[w]ithout confirming or denying the existence of electronic video surveillance, [the Authority] is not in possession of any responsive video.” Current Appeal Ms. Bewersdorff indicated in her appeal that the Authority did not provide all responsive records to her request. Ms. Bewersdorff stated that “I would like to know why they did not comply with my request. On what date was this evidence . . . destroyed? Why? ... How did [the Authority] lose possession of it?” In a telephone conference between a staff attorney of the Public Records Division, an Authority representative confirmed that the Authority does not possess any responsive records. Further the Authority indicated that the correct custodian of these records is the Transportation Security Administration, who they understand Ms. Bewersdorff is already in communication with. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Where the Authority has stated that it does not possess any records responsive to Ms. Bewersdorff’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Bewersdorff is unsatisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Christina Gibson SPR24/0710 Page 3 March 20, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Karen Hill Bewersdorff