Thomas J. Dougherty v. Massachusetts Department of Transportation (SPR 20241943)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2024 SPR24/1943 Stephen Shorey, Esq. Senior Counsel Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Shorey: I have received the petition of Thomas J. Dougherty, Esq. 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 22, 2024, Attorney Dougherty requested the following: [A] complete copy of each annual report submitted by the executive office of transportation and public works since enactment of Massachusetts General Law Chapter 303 Section 2 c, Item 6001-0806, including all detailed descriptions of any agreements, loans or grants, and all lists indicating the allocation of all committed and expended funds under Massachusetts General Law Chapter 303 Section 2 c, Item 6001-0806. The Department responded on June 21, 2024. Unsatisfied with the response, Attorney Dougherty petitioned this office and this appeal, SPR24/1958, 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). 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

Stephen Shorey, Esq. SPR24/1943 Page 2 July 22, 2024 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Department’s June 21st Response In its June 21, 2024 response, the Department explains, “it is my understanding that you can view annual reports by following this link” and provides a link to a Department website titled, “MassDOT financial information[.]” Current Appeal In his appeal, Attorney Dougherty asserts, “I . . . appeal the failure to provide the . . . records specified . . . in my May 22, 2024 public records request[.] Additionally, in a June 23, 2024 email sent in reply to the Department’s June 21, 2024 response, Attorney Dougherty states, “I have now reviewed all of the financial statements you refer to in your June 21, 2024 response[.] None of those financial statements refer to any of the requested information regarding [‘]all detailed descriptions of any agreements, loans or grants, and all lists indicating the allocation of all committed and expended funds under Massachusetts General Law Chapter 303 Section 2 c, Item 6001- 0806.[’]” Records in Existence; Possession, Custody, or Control Based on the Department’s response, in conjunction with Attorney Dougherty’s appeal, it is unclear if the Department possesses records responsive to the request, and if so, when it intends to provide the 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). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Department is ordered to provide Attorney Dougherty with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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.

Stephen Shorey, Esq. SPR24/1943 Page 3 July 22, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Thomas J. Dougherty, Esq.