Steve Adams v. Massachusetts Bay Transportation Authority (SPR 20241053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2024 SPR24/1053 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Steve Adams appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 14, 2024, Mr. Adams requested, “[c]orrespondences from Boston Properties and responses from MBTA regarding the Back Bay/South End Gateway development project.” The MBTA responded on February 15, 2024. Unsatisfied with the response, Mr. Adams petitioned this office and this appeal, SPR24/1053, 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. See 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. 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

Julie Ciollo, Esq. SPR24/1053 Page 2 April 22, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 MBTA’s February 15th response In its February 15, 2024 response, the MBTA queried Mr. Adams on the possibility of modifying the request for a more affordable and efficient response and stated, “[t]here may be a high volume of correspondence between the MBTA and Boston Properties about numerous topics…” Following the MBTA’s response, on March 16, 2024, Mr. Adams modified his request and stated, “[r]elevant phrases associated with this request include ‘South End Gateway,’ 145 Dartmouth St., 165 Dartmouth St., 171 Dartmouth St., Boston Proper[t]ies LP, BP Hancock LLC, Back Bay Station, Garage West parcel and Dartmouth Street garage. Alternatively, I would suggest searching emails from Boston Properties which would originate from the ‘@bxp.com’ domain.” Current Appeal In his appeal, Mr. Adams states, “[s]ince March 16, MassDOT has not acknowledged my follow-up emails or provided the requested documents.” Timeliness of providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the 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 for a municipality the timeframe shall not exceed 25 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 Mr. Adams submitted his modified request on March 16, 2024, it is unclear why the MBTA has not provided the responsive records. 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

Julie Ciollo, Esq. SPR24/1053 Page 3 April 22, 2024 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). 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). Consequently, I find the MBTA must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the MBTA must provide responsive records on a rolling basis. Conclusion Accordingly, the MBTA is ordered to provide Mr. Adams 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. Mr. Adams may appeal the substantive nature of the MBTA’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Steve Adams