Thomas J. Dougherty v. Massachusetts Department of Transportation (SPR 20242669)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2024 SPR24/2669 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/1943 Determination of the Supervisor of Records (July 22, 2024). In my July 22nd determination, I ordered the Department to clarify if it possessed records responsive to the request. Specifically, I found that to the extent that the requested records exist, 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. Subsequently, the Department responded on August 13, 2024. Unsatisfied with the response, Attorney Dougherty petitioned this office and this appeal, SPR24/2669, was opened as a result. 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. SPR24/2669 Page 2 October 2, 2024 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(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 August 13th Response In its August 13, 2024 response, the Department explains, “we continue to search for the requested [‘]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[’] in order to supplement MassDOT’s original response that included the annual reports.” The Department additionally states, “to clarify, are you seeking these [‘]detailed descriptions[’] from the MBTA, or just MassDOT?” Current Appeal In his appeal, Attorney Dougherty asserts, “it has been four months since my public records request . . . . No documents have been provided.” Additionally, in an August 13, 2024 email to the Department, Attorney Dougherty provides clarification as requested by the Department in its August 13, 2024 response. Attorney Dougherty states the following: I am seeking the following documents, whether now held by MassDOT or by the MBTA: “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.”

Stephen Shorey, Esq. SPR24/2669 Page 3 October 2, 2024 The statute itself mandated coordination of MassDot with the MBTA, and the submission of an annual report of fundings resulting therefrom, including the “detailed descriptions” stated in the statute itself. The Department is advised that G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency such that the agency cannot provide records within 10 business days, the agency 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 . . . 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 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 Attorney Dougherty clarified his request on August 13, 2024, and the Department has not provided responsive records or a timeframe for producing records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request. Consequently, the Department must provide an estimated date as to when it intends to complete the search and provide a response in accordance with G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. 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. Sincerely, Manza Arthur Supervisor of Records cc: Thomas J. Dougherty, Esq.