Chris Kubik v. Massachusetts Port Authority (SPR 20241782)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2024 SPR24/1782 Shannon O’Donnell Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. O’Donnell: I have received the petition of Chris Kubik 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 May 13, 2024, Mr. Kubik requested “…all videos of gate and portion of B38 from [May 12, 2024] at 2:30-4:00 PM.” On May 13, 2024, the Authority provided a response indicating that the Authority is in the process of locating public records responsive to the request. On June 10, 2024, Mr. Kubik emailed the Authority seeking an update on his request. The Authority responded to Mr. Kubik on June 13, 2024. As a result of the Authority’s June 13th response, Mr. Kubik petitioned this office, and this appeal was opened. 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. 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

Shannon O’Donnell SPR24/1782 Page 2 June 26, 2024 If there 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 June 13th Response The Authority’s June 13, 2024 response states, “[w]e are still working on your request for video and hope to a response for you soon.” Current Appeal In Mr. Kubik’s petition, he states, “[i]t has been 30 days since I requested a copy of a video from Logan [A]irport … I requested an update on Monday, June 10th, and am told still working on it…” Timeliness in 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. Kubik submitted his request on May 13, 2024, it is unclear why the Authority 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 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The Authority must provide Mr. Kubik with a date that the Authority will commence production of the records. Additionally, if possible, the Authority should provide the responsive records on a rolling basis.

Shannon O’Donnell SPR24/1782 Page 3 June 26, 2024 Conclusion Accordingly, the Authority is ordered to provide Mr. Kubik with a response to his 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. Kubik may appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Chris Kubik