Brian McCarter v. Massachusetts Technology Collaborative (SPR 20241979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2024 SPR24/1979 Jennifer Saubermann, Esq. General Counsel & Director of Government Affairs Massachusetts Technology Collaborative 75 North Drive Westborough, MA 01581 Dear Attorney Saubermann: I have received the petition of Brian McCarter appealing the response of the Massachusetts Technology Collaborative (Collaborative) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 2, 2024, Mr. McCarter requested “[c]opies of the analysis that was done to determine if a Community Anchor Institution was served by fiber, prior to it being loaded in MBI’s map @ [a specified website]. Feel free to limit the request to Bourne and Sandwich, Falmouth and Mashpee.” The Collaborative responded on July 3, 2024, providing numerous responsive records. Unsatisfied with the Collaborative’s response, Mr. McCarter petitioned this office, and this appeal, SPR24/1979, 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. 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

Jennifer Saubermann, Esq. SPR24/1979 Page 2 July 23, 2024 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. The Collaborative’s July 3rd Response In its July 3, 2024 response, the Collaborative provided numerous records responsive to Mr. McCarter’s request. Records in Existence; No Duty to Answer Questions, Conduct Research, Create Documents 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). Current Appeal In his appeal petition, Mr. McCarter argues the following: The methodology used to determine CAI broadband availability is outlined on page 12 of the IP Volume I posted [at a specified website]. The referenced paragraph lists the multiple documents, used to develop the final analysis, which we have already requested (and not received). This undermines the claim that there were no additional documents for our review. In an email to this office on July 18, 2024, Mr. McCarter further explains that he “asked for the analysis that caused all the community anchor buildings to be flipped to served.” In an email to this office on July 17, 2024, the Collaborative explains that “Mr. McCarter did not request a copy of the underlying data sources used by MassTech’s consultant to generate the analysis.” The Collaborative goes on to explain that “[t]he consultant produced the final analysis, which we provided to Mr. McCarter on July 3, 2024.” Conclusion Where the Collaborative has confirmed that it provided all records responsive to Mr. McCarter’s request, I will now consider this administrative appeal closed. If Mr. McCarter wishes to submit an additional public records request to the Collaborative for the underlying data sources or other documents, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1).

Jennifer Saubermann, Esq. SPR24/1979 Page 3 July 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter