Heather Hoffman v. Massachusetts Bay Transportation Authority (SPR 20251492)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1492 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Heather Hoffman, Esq., appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 17, 2025, Attorney Hoffman requested, “all easements, memoranda of understanding, or other agreements between the MBTA and the City of Cambridge regarding Linear Park, sometimes known as Alewife Linear Park, and any correspondence between the MBTA and the City of Cambridge regarding these documents and/or the creation of Linear Park.” In conjunction with her request, Attorney Hoffman provided the MBTA with a supplemental document on April 30, 2025 which she previously received from the MBTA, and stated, “[o]ne specific item included in my request is the agreement referred to in the attached vote, including correspondence with the City of Cambridge regarding it both before and after the MBTA Board of Directors meeting on December 29, 1983, and any related documents, such as easements, that were recorded with the Middlesex South District Registry of Deeds or in recordable form but not recorded.” The MBTA responded on May 9, 2025, assigning the request reference number R000506-041725. Unsatisfied with the MBTA’s response, Attorney Hoffman petitioned this office and this appeal, SPR25/1492, was opened as a result. While this appeal was pending, the MBTA provided a supplemental response on June 3, 2025. 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 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

Julie A. Ciollo, Esq. SPR25/1492 Page 2 June 3, 2025 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. The MBTA’s May 9th and June 3rd Responses In its May 9, 2025 response, the MBTA stated, “…our searches to date have not yielded any responsive records… At this time, the MBTA does not possess or control any responsive records… To the extent that any additional searches are successful, I will update you.” Current Appeal In her appeal petition, Attorney Hoffman states, “I am writing to appeal the inadequate response to the attached public records request. I even supplied two documents that would have been responsive, one of which I had obtained from the MBTA some time ago, so I know that they have it. I hoped that the documents I supplied would help guide the search. Instead I was told that they had no responsive documents. That is just manifestly untrue.” In an email to this office on June 3, 2025, an attorney for the MBTA stated, “[c]onfirming that we were unable to locate responsive records, which is what we told Ms. Hoffman.” 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). Further, 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 MBTA possesses no records responsive to Attorney Hoffman’s request,

Julie A. Ciollo, Esq. SPR25/1492 Page 3 June 3, 2025 and this office has no authority to compel the MBTA to create records, I will now consider this administrative appeal closed. If Attorney Hoffman 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Heather Hoffman, Esq.