Bill Shein v. Massachusetts Department of Transportation (SPR 20253435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2025 SPR25/3435 William H. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Bill Shein, of The Berkshire Argus, appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 22, 2025, Mr. Shein requested the following records: [1] Any and all records, including all internal and external e-mail and other correspondence, related to any submittal(s) to MassDOT by the Town of Great Barrington under Chapter 90, Section 39B, which requires that, as it pertains to any local aviation-related rules, “such rules and regulations, ordinances or by- laws shall be submitted to the commission and shall not take effect until approved by the commission.” [2] Any and all documents, including all internal and external e-mail and other correspondence, related to any and all repair, maintenance, construction, or other projects proposed at, or for, the Great Barrington Walter J. Koladza Airport (GBR), including information about any proposed, requested, or approved state grants, including financing contemplated or awarded under the MassDOT Aeronautics Division Airport Safety and Maintenance Program (ASMP) or any other state or federal program. [3] Any and all documents related to airport inspection(s) by MassDOT, including but not limited to triannual airport inspections, runway pavement evaluations and repair plans under IDEA/Pavement Management Program, and including but not limited to inspection notes, draft and final reports, executive summaries, project plans and drawings, photographs, cost estimates and/or budgets. [4] Current based-aircraft report for GBR including the most recent dated submission from Berkshire Aviation. 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

Williams H. Doyle, Esq. SPR25/3435 Page 2 December 1, 2025 Prior Appeals The requested records were the subject of prior appeals. See SPR25/2194 Determination of the Supervisor of Records (August 8, 2025); SPR25/2450 Determination of the Supervisor of Records (September 3, 2025) and SPR25/2818 Determination of the Supervisor of Records (October 9, 2025). In my October 9th determination, I learned that MassDOT provided a supplemental response to Mr. Shein on October 8, 2025. Unsatisfied with the response, Mr. Shein petitioned this office and this appeal, SPR25/3435, 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. Current Appeal In his appeal petition, Mr. Shein asserts, “I’m interested in a full response to #2. Once that’s complete, I can evaluate the response in its entirety, as these elements are interrelated. So I’ll reserve the right to a further appeal of the agency’s overall response once they’ve provided a response to #2 and say their response is complete.” MassDOT’s October 8th Response In its October 8, 2025 response, MassDOT states, “MassDOT is actively reviewing records for category 2, which is the final pending portion of your request. I intend to provide a supplemental response in the near future.” Based on Mr. Shein’s appeal, in conjunction with MassDOT’s response, it is unclear if MassDOT possesses any records responsive to Item 2 of his request. 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). However, 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). Consequently, MassDOT must clarify whether any responsive records exist for Item 2.

Williams H. Doyle, Esq. SPR25/3435 Page 3 December 1, 2025 Conclusion Accordingly, MassDOT is ordered to provide Mr. Shein with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Shein may appeal the substantive nature of MassDOT’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Bill Shein Stephen Shorey, Esq.