Christopher Burrell v. Massachusetts Port Authority (SPR 20243152)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3152 Shannon O’Donnell Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. O’Donnell: I have received the petition of Christopher Burrell, of WGBH News, appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 31, 2024, Mr. Burrell requested the following: [1] A copy of the application and supplemental materials that the agency submitted in 2024 to the EPA under its Clean Ports Program. [2] A copy of any correspondence from the EPA to the state agency, informing the agency of the outcome of that Clean Ports grant application. [3] A copy of any correspondence between Massport and the EPA after the Clean Ports grant awards were announced on or about Oct. 29, 2024, including feedback or explanations from EPA about the unsuccessful grant application. The Authority responded on November 14, 2024. Unsatisfied with the Authority’s response, Mr. Burrell petitioned this office, and this appeal, SPR24/3152, 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 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

Shannon O’Donnell SPR24/3152 Page 2 December 5, 2024 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. The Authority’s November 14th Response In its November 14, 2024 response, the Authority states the following The Massachusetts Port Authority (“Massport”) has received your request for public records dated October 31. We are in the process of locating public records responsive to your request, subject to exemption or privilege. We will make responsive public records available to you as soon as possible, subject to the condition described below, and will notify you when they are available. In accordance with 950 CMR 32.06, you may be required to pay the reasonable cost of responding to your public records request. In his appeal petition, Mr. Burrell states that “the agency has not provided the records nor have they given me a timeline for when they would.” Timeframe for Providing Records The Authority 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 or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality 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 or municipality 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 Mr. Burrell submitted his request on October 31, 2024, and the Authority has not provided responsive records, nor cited an exemption for withholding records, I find the Authority has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b).

Shannon O’Donnell SPR24/3152 Page 3 December 5, 2024 Consequently, the Authority must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Authority must provide responsive records on a rolling basis. Conclusion Accordingly, the Authority is ordered to provide Mr. Burrell with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Christopher Burrell