Mikhael El-Bayeh v. Massachusetts Department of Transportation (SPR 20252449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2449 William J. Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Mikhael El-Bayeh appealing the response of the Department of Transportation (Department/MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 19, 2025, Mr. El-Bayeh requested, from October 24, 2024 to February 23, 2025, the following: [1] Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records as defined by G. L. c. 4, § 7, Twenty‐sixth, discussing, interpreting, mentioning, or otherwise related to, in whole or in part, the criteria for making, amending, or rescinding a special regulation, and for determining whether the same is consistent with the public interests, as such powers are laid out in G. L. c. 90, § 18, as amended by St. 2022, c. 358, § 13, par. 1‐4, and records related to the application of such criteria, including, but not limited to, special regulations made, amended, or rescinded[;] [2] Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records as defined by G. L. c. 4, § 7, Twenty‐sixth, discussing, interpreting, mentioning, or otherwise related to, in whole or in part, the petitioning procedure, and MassDOT’s approval or denial of such petitions, as such powers are laid out in G.L. c. 90, § 18, as amended by St. 2022, c. 358, § 13, par. 5, and records related to such petitions, including, but not limited to, petitions approved or denied[; and] [3] Any other policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records as defined by G. L. c. 4, § 7, Twenty‐sixth regarding inquires to and correspondence with MassDOT personnel related to speed zoning. 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

William J. Doyle, Esq. SPR25/2449 Page 2 August 29, 2025 The Department responded on August 4, 2025. Unsatisfied with the response, Mr. El- Bayeh petitioned this office and this appeal, SPR25/2449, 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. 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 Department’s August 4th Response In its August 4, 2025 response, the Department responded to Mr. El-Bayeh stating, “[p]lease be advised that we will require additional time to respond to your request while we complete our review of the responsive records we have received, for any applicable exemptions and/or privilege. As a result, we may extend the time to respond to your initial request by up to an additional five (5) business days from our receipt.” Current Appeal In his appeal, Mr. El-Bayeh states, “I am appealing to your office MassDOT’s complete failure to produce any records responsive to the . . . public records request.” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the 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

William J. Doyle, Esq. SPR25/2449 Page 3 August 29, 2025 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 for a municipality the timeframe shall not exceed 25 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. El-Bayeh’s request was submitted on July 19, 2025, and the Department has not provided responsive records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Department must provide an estimated date as to when it expects to complete its review and provide any responsive records. 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 Mr. El-Bayeh with a response to his 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. Mr. El-Bayeh may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mikhael El-Bayeh