Rothstein, Kevin v. Massachusetts Bay Transportation Authority (SPR 20261229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2026 SPR26/1229 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Kevin Rothstein appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 4, 2026, Mr. Rothstein requested, “[a]ll records provided subsequent to MBTA Public Records Case No R000718-092222.” The MBTA responded on March 17, 2026, assigning the request reference number R000297-030426. Unsatisfied with the MBTA’s response, Mr. Rothstein petitioned this office and this appeal, SPR26/1229, 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. 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

Julie A. Ciollo, Esq. SPR26/1229 Page 2 April 10, 2026 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 MBTA’s March 17th Response In its March 17, 2026 response, the MBTA stated, “[t]he MBTA did not provide any records in response to the referenced public records request as they were exempted from disclosure. Therefore, the MBTA does not possess any records that would be responsive to your request.” Current Appeal In his appeal petition, Mr. Rothstein argued: These records have already been produced to another individual subsequent to that individual’s request… [H]ow can records provided to one individual (an attorney) be then exempt from disclosure to another individual (a journalist)? The attorney received the records after public records litigation… The records produced by the MBTA on Oct. 16, 2023… are the same ones I requested[.] In a telephone conversation with this office on April 9, 2026, the MBTA clarified that it did not produce any records in response to the public records request referenced in Mr. Rothstein’s request due to an ongoing investigation at the time, and thus confirmed that it does not possess any records responsive to Mr. Rothstein’s request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). Please also be aware, the Public Records Law states that a records access officer must furnish a copy of any public record “provided that the request reasonably describes the public record sought.” See G. L. c. 66, § 10(a)(i). Given that the MBTA has confirmed that it does not possess any records responsive to the request as it is written, and this office has no authority to compel the MBTA to create records, I find that the MBTA has met its burden under the Public Records Law in responding to the request. However, where Mr. Rothstein has attempted to clarify the specific records he is seeking, this office encourages Mr. Rothstein and the MBTA to communicate to facility providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall

Julie A. Ciollo, Esq. SPR26/1229 Page 3 April 10, 2026 suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Mr. Rothstein may wish to submit a new request identifying the specific records he seeks, including the specific identifying details he provided to this office in his appeal petition. Conclusion Accordingly, I will consider this administrative appeal closed. If outstanding issues remain after Mr. Rothstein and the MBTA communicate further as described above, Mr. Rothstein may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Rothstein