Joseph Davis v. Massachusetts Department of Transportation (SPR 20242451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 10, 2024 SPR24/2451 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Joseph Davis 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 6, 2024, Mr. Davis requested: …any records available pertaining to the original planning and construction of Daniel Shays Highway (US 202), specifically in Pelham, MA between Amherst Road and King Street. This stretch is approximately 1/2-mile long. It contains at least four massive cement drain pipes under the road so the original blueprints would have to have accounted for those. There must also be records of their requisition and transportation and installation. Any plans around the use of surrounding properties for staging or dumping during the road construction are also requested. Blasting also occurred through this stretch, so that had to have been planned and the dumping of those materials must also have been planned. Any plans for the building of driveways onto surround land to accommodate this staging and dumping are also requested. If it happened south of Amherst Road and north of King Street and is any way related to Daniel Shays Highway planning and construction the early 1930s, I am requesting any and every record available relevant to that. If MassDOT is not the custodian of these records, please let me know who would be. I imagine FHWA has the same information but would point at MassDOT first. 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. SPR24/2451 Page 2 September 10, 2024 Prior Appeal This request was the subject of a prior appeal. See SPR24/1664 Determination of the Supervisor of Records (June 17, 2024). In my June 17th determination, I found that it was unclear if the Department possessed additional records responsive to the request. The Department responded on July 22, 2024, providing additional records. Unsatisfied with the response, Mr. Davis petitioned this office and this appeal, SPR24/2451, 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. 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. Current Appeal In his petition, Mr. Davis states the following: The response came 13 business days after the deadline set by your order. No extension was requested and all that resulted was a previously provided document and one outside the scope of the request. This means the initial response of June 5, 2024, still stands as the only time records responsive to the May 6, 2024 request have been provided despite your June 17, 2024 order. As such, not only is the July 22, 2024 response still inadequate for failing to address the existence of these other records, it unnecessarily came weeks later than ordered… The additional document that was provided (November 1934 road map) may be an official MassDOT document, but unfortunately, it is also fraudulent. The 1933 road construction map better matches the present day physical reality of the area

William J. Doyle, Esq. SPR24/2451 Page 3 September 10, 2024 while the 1934 map looks like an older pre-construction survey map that was put on a light table and used for tracing around the location of the newly-built road … Either way, the tardiness of the response along with the inadequacy of the response along with one of the documents being fraudulent all add up to continued defiance of public records law. Unclear Appeal Please be advised that in compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. See G. L. c. 66, § 10A(a). In his appeal petition, Mr. Davis has not alleged a violation of G. L. c. 66, § 10 by the Department. Consequently, the basis of Mr. Davis’s appeal is unclear. Mr. Davis is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, I will consider this administrative appeal closed. Mr. Davis may wish to clarify his specific objections to the Department’s July 22nd response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Davis Stephen Shorey, Esq.