Nicholas Dube v. Massachusetts Department of Transportation (SPR 20253393)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2025 SPR25/3393 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. SPR25/3393 Page 2 December 2, 2025 Previous Petition and Appeal This request was the subject of a previous petition from MassDOT and a previous appeal. See SPR25/2705 Determination of the Supervisor of Records (September 18, 2025) and SPR25/2864 Determination of the Supervisor of Records (October 14, 2025). In my October 14, 2025 determination, I ordered MassDOT to provide an estimated date as to when it intends to complete the search and provide the responsive records. Subsequently, MassDOT provided a response on October 28, 2025, which included a fee estimate. Claiming to have paid the fee but not yet received responsive records, Attorney Dube petitioned this office and this appeal, SPR25/3393, was opened as a result. While this appeal was pending, MassDOT provided a supplemental response to Attorney Dube and this office on November 17, 2025, which Attorney Dube further appealed in an email to this office on November 18, 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. MassDOT’s October 28th and November 17th Responses In its October 28, 2025 response, MassDOT provided a fee estimate of $145.00 and advised, “the estimated cost of complying with your request is 5.8 hours of chargeable work at $25.00 per hour, or $145.00. This amount must be paid in advance . . . .” MassDOT additionally provided its mailing address and noted, “[i]f you would like MassDOT to perform the work described [in its fee estimate], please send a check for $145.00 payable to “MassDOT[.]” In its November 17, 2025 supplemental response, a representative for MassDOT stated, “MassDOT received the check last week and we’re finalizing our review. I expect to have an update for you this week.”

William J. Doyle, Esq. SPR25/3393 Page 3 December 2, 2025 Current Appeal In his November 17, 2025 appeal petition, Attorney Dube indicates that on October 29, 2025, he mailed MassDOT a check for $145.00 to pay for the cost of producing responsive records as assessed in MassDOT’s October 28, 2025 fee estimate. He additionally states the following: It has now been . . . over ten business days since the check was sent to MassDOT . . . . Once again, I have not heard anything further from MassDOT, and it appears that MassDOT is not in compliance with both the last instructions of the Supervisor of Records and its obligations under the public records laws. I am therefore appealing again to the Supervisor of Records in order to get a response and to object to the timeliness of MassDOT’s response. It has been fifty-four business days . . . and I have not received a single document. In his further appeal of MassDOT’s November 17th supplemental response, Attorney Dube explains, “I have been promised updates in the past, without much to show for it other than more promises of updates. Absent actual, rolling production of materials and concrete dates for production, I must maintain and proceed with the appeal.” As of this date, it is my understanding that Attorney Dube has not yet received records responsive to his August 28, 2025 request. MassDOT is reminded that under the Public records Law, “[a] records access officer . . . shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request, provided that: . . . (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d).” G. L. c. 66, § 10(a)(iii). To the extent possible, MassDOT must provide responsive records on a rolling basis. Order Accordingly, MassDOT is ordered to provide Attorney Dube with a response in a manner consistent with this order, the October 14, 2025 order described above, the Public Records Law and its Regulations without delay. 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: Nicholas Dube, Esq.