Nikita Shcherbakovskiy v. Massachusetts Port Authority (SPR 20250147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 21, 2025 SPR25/0147 Shannon O’Donnell Public 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 Nikita Shcherbakovskiy 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 December 25, 2024, Mr. Shcherbakovskiy requested surveillance camera footage from Boston Logan Airport at a specified time. The Authority sought clarification of the request on December 30, 2024. Mr. Shcherbakovskiy provided said clarification on December 31, 2024. Prior Appeal This request was the subject of a prior appeal. See SPR25/0135 Determination of the Supervisor of Records (January 15, 2025). In my January 15th determination, I found that the Authority had provided Mr. Shcherbakovskiy with a response on January 15, 2025. Unsatisfied with this response, Mr. Shcherbakovskiy petitioned this office and this appeal, SPR25/0147, 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. 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 SPR25/0147 Page 2 January 21, 2025 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 January 15th Response In its January 15, 2025 response, the Authority informed Mr. Shcherbakovskiy that it possessed no records responsive to the request. Current Appeal In his January 16, 2025 petition to this office, Mr. Shcherbakovskiy expressed his belief that responsive records existed, on the grounds that the Authority operates Boston Logan Airport and the video equipment therein. In an email communication to this office on January 17, 2025, the Authority confirmed that it possessed no records responsive to the request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). 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). Conclusion Given that the Authority possesses no records responsive to Mr. Shcherbakovskiy’s request and this office has no authority to compel the Authority to create records, I will now consider this administrative appeal closed. If Mr. Shcherbakovskiy is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Shannon O’Donnell SPR25/0147 Page 3 January 21, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Nikita Shcherbakovskiy Ashley K. Carvalho, Esq.