Nicholas Dube v. Massachusetts Department of Transportation (SPR 20252864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 14, 2025 SPR25/2864 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 Nicholas Dube, Esq., 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 August 28, 2025, Attorney Dube requested the following records from “1/1/2025 to 8/28/2025” concerning “the project known as MassDOT District 4 Administration Building, Project No. 605850-128297 (the [‘]Project[’])[:]” [1] All communications (electronic or otherwise) between MassDOT and any of . . . [five identified] individuals or entities concerning the Project related to the scope of work, removal, substitution, or replacement of any MBE subcontractor on this project . . .[;] [2] Any internal e-mails, documents, or memoranda discussing AM Equipment, LLC’s role or substitution on the project[;] [3] Any internal e-mails, documents, or memoranda discussing the MBE/WBE scope of work for the project[;] [4] Any communications between MassDOT and AM Equipment, LLC regarding AM Equipment, LLC’s scope of work, participation, or removal from the Project[;] [5] Any documents relating to approval, denial, or consideration by MassDOT of a revised participation schedule for Cranshaw Construction for the Project[;] [6] All minutes, notes, drafts, memoranda or the like produced in connection with any meeting held between the individuals and entities identified above and MassDOT. 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. SPR25/2864 Page 2 October 14, 2025 Previous Petition This request was the subject of a previous petition. See SPR25/2705 Determination of the Supervisor of Records (September 18, 2025). In my September 18, 2025 determination, I found that MassDOT had met its burden to assess a fee for segregation and redaction. Concurrent with its fee petition, MassDOT provided a response on September 12, 2025. Unsatisfied with MassDOT’s response and claiming to not yet have received responsive records, Attorney Dube petitioned this office and this appeal, SPR25/2864, 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. MassDOT’s September 12th Response In its September 12, 2025 response, which it provided concurrently with its fee petition, as described above, MassDOT indicated that it required “an additional five (5) business days” to respond to Attorney Dube’s request. In correspondence replying to MassDOT on the same date, Attorney Dube agreed to the extension, stating, “[t]hank you for your message. I consent to an extension of up to five (5) additional business days.” Subsequently, in correspondence dated September 15, 2025, Attorney Dube inquired whether MassDOT “might . . . prioritize disclosure of the communications in item one between MassDOT and third-parties” in the interest of “[accelerating] the process of providing materials[.]” In correspondence dated September 26, 2025, Attorney Dube further inquired as to the status of his “pending records request of August 28.” He stated, “[m]y understanding is that both [MassDOT’s] requested five business day extension and the time set forth by the Supervisor of Records for a response and fee estimate have elapsed, but I have not heard back from [MassDOT] nor have I received any materials.”

William J. Doyle, Esq. SPR25/2864 Page 3 October 14, 2025 Current Appeal In his September 30, 2025 appeal petition, Attorney Dube contends the following: I am writing to request your assistance regarding MassDOT’s compliance with your September 18, 2025 determination in SPR25/2705. MassDOT was required to provide me with a response within five business days of receipt of that determination, but as of today I have not received any response or a fee estimate. It has now been more than a month since I submitted a public records request without any substantive engagement with me on the request by MassDOT beyond the request for permission to assess fees. 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 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 Attorney Dube’s request was submitted on August 28, 2025, and MassDOT has not provided responsive records, nor cited an exemption for withholding records, I find that MassDOT has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, MassDOT 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 MassDOT must provide responsive records on a rolling basis. Conclusion Accordingly, MassDOT is ordered to provide Attorney Dube 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

William J. Doyle, Esq. SPR25/2864 Page 4 October 14, 2025 pre@sec.state.ma.us. Attorney Dube may appeal the substantive nature of the MassDOT’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Nicholas Dube, Esq.