Kevin Cloutier v. Massachusetts Department of Transportation (SPR 20253225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2025 SPR25/3225 William J. Doyle, Esq. General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Kevin M. Cloutier, Esq. appealing the response of the Massachusetts 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 September 3, 2025, Attorney Cloutier requested: [C]opies of any and all records related to MassDOT work being performed in the grass median near 654 State Road and Rt. 6 in Dartmouth, Massachusetts, on July 17, 2025 at approximately 9:30 a.m. that resulted in a MassDOT landscaping/ maintenance truck being parked in the grass median adjacent to the crash site. This request includes, but is not limited to: [1] Work orders, job assignments, or service requests; [2] Crew schedules and personnel assignments; [3] Vehicle or equipment logs for the landscaping/maintenance truck; [4] Internal communications (emails, memos, or notes) concerning the work or truck placement; and [5] Any permits, notices, or directives related to the work. The Department responded on September 3, September 17, and October 21, 2025. Unsatisfied with the responses, Attorney Cloutier petitioned this office and this appeal, SPR25/3225, was opened as a result. 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. SPR25/3225 Page 2 November 14, 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. 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 Responses In its September 3, 2025 response, the Department acknowledged receipt of the request and assigned Reference Number P001949-090325. On September 17, 2025, the Department stated: Please be advised that we will require additional time to respond to your request due to the need to confirm whether responsive records exist and/or review for exemptions to the Public Records Law. 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 or, if you are agreeable, to a response date beyond this time. Following further correspondence from Attorney Cloutier, the Department responded on October 21, 2025, stating, “MassDOT is working on this, and I thank you for the patience. We’re finalizing our review and I hope to have an update for you in the coming days.” 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:

William J. Doyle, Esq. SPR25/3225 Page 3 November 14, 2025 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 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 Cloutier submitted his request on September 3, 2025, and the Department has not provided responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Department 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 Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Attorney Cloutier with a response to the 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. Sincerely, Manza Arthur Supervisor of Records cc: Kevin M. Cloutier, Esq.