Michelle Loubert v. Massachusetts Department of Transportation (SPR 20242157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2024 SPR24/2157 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 Michelle Loubert appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 8, 2024, Ms. Loubert requested, “information regarding bridge work on the bridge at the intersection of Route 41 and Division Street (heading south)… I am requesting: Copies of any reports as to the condition of this bridge relating to the current project… If MA DOT has communicated with the Town of Gt. Barnington on this project, I would like copies of the communications (emails or letters).” MassDOT provided a response on July 12, 2024. Unsatisfied with MassDOT’s response, Ms. Loubert petitioned this office and this appeal, SPR24/2157, 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. Att’y 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

William J. Doyle, Esq. SPR24/2157 Page 2 August 9, 2024 MassDOT’s July 12th Response In its July 12, 2024 response, MassDOT provided a link to records responsive to the request. Current Appeal In her appeal to this office, Ms. Loubert states, “the information provided was for a bridge located on Brookside Road in Great Barrington – NOT at the intersection of Division Street and Route 41. I replied to the MA DOT informing them of this error. I received no response.” Possession, Custody, or Control MassDOT is advised that 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). Based on MassDOT’s response, in conjunction with Ms. Loubert’s appeal, it is unclear whether MassDOT possesses records responsive to Ms. Loubert’s request. If MassDOT does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). MassDOT must clarify this matter. Conclusion Accordingly, MassDOT is ordered to provide Ms. Loubert with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Michelle Loubert