Heather Hoffman v. Massachusetts Bay Transportation Authority (SPR 20251665)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2025 SPR25/1665 Julie 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 May 27, 2025, Attorney Hoffman requested, “[a]ll agreements with the City of Cambridge with respect to the use of the Cambridge city dump in connection with the Red line Extension and turning the dump into Danehy Park.” The MBTA responded on June 10, 2025. Unsatisfied with the MBTA’s response, Attorney Hoffman petitioned this office and this appeal, SPR25/1665, was opened as a result. Subsequently, the MBTA provided a supplemental response to this office on June 11, 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 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. Att’y 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. 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 Ciollo, Esq. SPR25/1665 Page 2 June 25, 2025 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 June 10th response In its June 10, 2025 response, the MBTA states, “[i]n response to your request, the MBTA conducted a search for responsive records. As a result of this search, it has been determined that the MBTA does not possess or control any responsive records.” Current Appeal In her appeal petition, Attorney Hoffman states: Please accept this as my appeal of the MBTA’s claim that it has no records about the Red Line Extension. After all, it dates back a whole 40-50 years… No doubt that required no formal agreements with the City of Cambridge, a mere handshake being sufficient in those ancient times…. I really cannot believe that the MBTA and the City of Cambridge did not reduce their understanding of their mutual rights and responsibilities to formal legal agreements, and I feel certain that that mound of paper still exists somewhere in the MBTA’s control…. No Duty to Create Records Please note that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In an email to a staff attorney of the Public Records Division on June 11, 2025, the MBTA asserted, “as . . . stated in the [June 10th] response, the records custodian did search for the requested agreement from nearly 50 years ago, and no such agreement was located.” Conclusion Where the MBTA confirmed that it does not possess records responsive to Attorney Hoffman’s request, and has no duty to create records responsive to the request, 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

Julie Ciollo, Esq. SPR25/1665 Page 3 June 25, 2025 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). Sincerely, Manza Arthur Supervisor of Records cc: Heather Hoffman, Esq.