Joseph Davis v. Massachusetts Department of Transportation (SPR 20241664)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1664 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Joseph Davis appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 6, 2024, Mr. Davis requested: …any records available pertaining to the original planning and construction of Daniel Shays Highway (US 202), specifically in Pelham, MA between Amherst Road and King Street. This stretch is approximately 1/2-mile long. It contains at least four massive cement drain pipes under the road so the original blueprints would have to have accounted for those. There must also be records of their requisition and transportation and installation. Any plans around the use of surrounding properties for staging or dumping during the road construction are also requested. Blasting also occurred through this stretch, so that had to have been planned and the dumping of those materials must also have been planned. Any plans for the building of driveways onto surround land to accommodate this staging and dumping are also requested. If it happened south of Amherst Road and north of King Street and is any way related to Daniel Shays Highway planning and construction the early 1930s, I am requesting any and every record available relevant to that. If MassDOT is not the custodian of these records, please let me know who would be. I imagine FHWA has the same information but would point at MassDOT first. On May 6, 2024, the Department provided an acknowledgement of Mr. Davis’ request, and provided a reference number for tracking purposes. On May 17, 2024, the Department responded, “[p]lease be advised that we will require additional time to respond to your request as 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. SPR24/1664 Page 2 June 17, 2024 we await the receipt of any responsive records. As a result, we may extend the time to respond to your initial request by up to an additional five (5) business days from our receipt…” As a result of the Department’s May 17th response, and not receiving any records by May 30th, Mr. Davis petitioned this office, and this appeal was opened. Subsequent to the opening of this appeal, I learned the Department provided Mr. Davis with a response on June 5, 2024, which included some responsive records. After the Department’s June 5th response with a production of records, Mr. Davis contacted this office and [the Department] via email on June 6th, objecting to the Department’s June 5th response and production of records. 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 petition, Mr. Davis states, “[a]fter careful review of the responsive records relative to the request and relative to the records I believe should exist, I must declare the [Department’s] response to be inadequate…” Mr. Davis provided a 2-page list of records pertaining to his request that he believes were not provided by the Department. Additional 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

William J. Doyle, Esq. SPR24/1664 Page 3 June 17, 2024 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). 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 June 5th response, coupled with Mr. Davis’ petition, it remains unclear if the Department possesses additional records responsive to the May 6th request. The Department must clarify whether additional records exists. Conclusion Accordingly, the Department is ordered to provide Mr. Davis 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 this response to this office at pre@sec.state.ma.us. Mr. Davis may appeal the substantive nature of the Department’s response within ninety days. 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Davis Stephen Shorey, Esq.