John York v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20241846)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2024 SPR24/1846 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of John York appealing the response of the Massachusetts Department of Transportation – Office of the General Counsel (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 29, 2024, Mr. York requested the following: [1.] A letter from the Federal Highway Administration (FHWA) to the Massachusetts Department of Transportation (MassDOT), dated March 20, 2023, concerning MassDOT’s National Environmental Policy Act (NEPA) Class of Action (COA) recommendation for the Cape Cod Bridges Program… [2.] A letter from the Federal Highway Administration (FHWA) Massachusetts Division to [a named individual], MassDOT Chief Engineer, dated August 11, 2023… [3.] A letter from MassDOT addressed to US Secretary of Transportation… dated August 16, 2023, signed by Massachusetts Secretary of Transportation… and by [a named individual] for US Army Corps of Engineers District Engineer [a named individual]. MassDOT responded on June 12 and June 20, 2024. Unsatisfied with MassDOT’s responses, Mr. York petitioned this office and this appeal, SPR24/1846, 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 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. SPR24/1846 Page 2 July 10, 2024 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. MassDOT’s June 12th and 20th Responses In its June 12, 2024 response, MassDOT stated, “[p]lease be advised that we will require additional time to respond to your request while 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.” In its June 20, 2024 response, MassDOT stated, “[p]lease note that MassDOT looks forward to providing you the information you seek under the public records law.” 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. York submitted his request on May 29, 2024, it is unclear why MassDOT 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). MassDOT must provide Mr. York with a production schedule in

William J. Doyle, Esq. SPR24/1846 Page 3 July 10, 2024 which MassDOT will commence providing the responsive records. If possible the records should be provided on a rolling basis to Mr. York. Conclusion Accordingly, MassDOT is ordered to provide Mr. York 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. York may appeal the substantive nature of MassDOT’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John York