MBTA obstructs public records request, Secretary of State drags feet

A side effect of my attempts to get information from the MBTA about toxic fumes in the passenger compartments of their buses (I will write more about that later, after a followup meeting I’ve been invited to by the MBTA) was my discovery that the MBTA is not terribly good at responding to public records requests within the time frame required by law. Since I view that as a serious problem in its own right, I attempted to shine some sunlight on it in my February 13 letter to the MBTA:

I would like to add an additional item to my request, or if you wish you may treat this as a new, separate request under the public records law. Please tell me how many public records law requests the MBTA has received in 2013, the date on which each was received, and the date on which an initial response was sent. There should be no significant cost for satisfying this request, since there could not have been that many requests so far this year (mine, after all, was only the ninth) and all such requests are presumably handled through your office.

In a letter dated February 22, the MBTA lawyer who handles public records requests informed me that, “… after a thorough and diligent search of files, the Massachusetts Bay Transportation Authority has no existing, responsive documents.”

I sent the following back to the MBTA on March 9, CC’ing the public records division within the Secretary of State’s office, who is responsible for ensuring that government agencies follow the public records law:

Dear Ms. Krupanski,

This letter constitutes an appeal of the denial of a public records request under the law, and for that reason, I am CC’ing the Public Records Division of the Secretary of the Commonwealth.

I have received your letter of February 22, 2013, responding to my public records request which you have numbered [elided] and summarized “Log of Public Records Requests Received in 2013 / Dates of Receipt and Replies”. You responded, “… after a thorough and diligent search of files, the Massachusetts Bay Transportation Authority has no existing, responsive documents.”

I have three points to make in response to your letter:

First, your summary mischaracterized my request. I did not ask for a “log” of any sort; rather, I asked for specific information, i.e., the receipt and response dates for public records requests, without dictating the form of the records containing that information.

Second, since Massachusetts law requires public agencies to save copies of incoming and outgoing correspondence, it is simply inconceivable that you would have “no existing, responsive documents,” unless your record-keeping is in violation of the law. The requests themselves, and your responses to them, contain the information I requested. You could satisfy my request simply by copying the first page of each request and response and blacking out exempt information on those copies, leaving only the dates and request numbers visible.

Third, I find it necessary to quote from “A Guide to the Massachusetts Public Records Law”, published by Secretary of the Commonwealth William Francis Galvin: “Records custodians must use their superior knowledge to determine the precise record or records responsive to the request.” Whether unintentionally or not, you seem to be in violation of the law by claiming that there are no responsive documents when it should be clear, given the paragraph, that that is not the case.

For your reference and to satisfy the legal requirements for an appeal, I have attached my previous email containing the public records request in question. That email also contains other text, concerning a separate public records request, so I will also quote the text specially pertaining to this one:

I would like to add an additional item to my request, or if you wish you may treat this as a new, separate request under the public records law. Please tell me how many public records law requests the MBTA has received in 2013, the date on which each was received, and the date on which an initial response was sent. There should be no significant cost for satisfying this request, since there could not have been that many requests so far this year (mine, after all, was only the ninth) and all such requests are presumably handled through your office.

One more point… Quoting again from the Guide, “In the interest of open government, all records custodians are strongly urged to waive the fees associated with access to public records, but are not required to do so under the law.” Since the MBTA’s adherence, or lack of same, to the public records law is clearly of public interest, I strongly urge you to waive the (minimal) fees necessary to satisfy this request.

Sincerely,

Jonathan Kamens

Both the MBTA and the Secretary of State’s office ignored my letter.

I wrote again on April 13, to the public records department (again) and the Secretary of State’s “Citizen Information Service” mailbox:

Subject: Public Records request ignored by MBTA and your office

To whom it may concern:

I sent public records request number [elided] to the MBTA on February 13, 2013. See the letter in the first attached email message; the public records request in question is included three paragraphs from the end of the letter. In particular:

“Please tell me how many public records law requests the MBTA has received in 2013, the date on which each was received, and the date on which an initial response was sent. There should be no significant cost for satisfying this request, since there could not have been that many requests so far this year (mine, after all, was only the ninth) and all such requests are presumably handled through your office.”

I received a response dated February 22 from Susan M. Krupanski, Assistant General Counsel of the MBTA. Her response was unacceptable and in violation of the public records law.

On March 9, I replied to her response, explaining exactly why her response was unacceptable. I sent a copy of that message to the public records division of your office, pre@sec.state.ma.us. The first paragraph of my letter read as follows: “This letter constitutes an appeal of the denial of a public records request under the law, and for that reason, I am CC’ing the Public Records Division of the Secretary of the Commonwealth.” That letter is also attached to this email message.

It is now over a month later, and I have received no further response from the MBTA, nor have I received any response from the public records division.

The MBTA continues to violate the public records law by failing to respond substantively to my public records request, and the public records division of your office appears to have failed to perform your duty, outlined in the public records law, to serve as supervisor of public records and take steps to correct violations of the law.

Can you please do something about both of these issues?

Please note: You will see in the first attached letter that I had also made a previous public records request to the MBTA, which they numbered [elided]. Ms. Krupanski’s response to that request has also violated the public records law. However, I am no longer pursuing that request, since I have since obtained the necessary information through other channels. I am now concerned only with the second request discussed above.

Thank you,

Jonathan Kamens

Finally, on April 22, I received email from an office manager in the public records division asking for a copy of the letter the MBTA sent me denying my request. I provided it on April 24, and a few days later I received a letter via U.S. Mail from Shawn A. Williams, the Supervisor of Records, which reads in part:

I have directed a member of my staff, Attorney Lori Sullivan, to review this matter. Upon completion of the review, I will advise you in writing of the disposition of this case. If in the interim you receive a satisfactory response to your request, please notify this office immediately.

Today, over a month after the date of that letter, and over three months after I first submitted my public records request, I have heard nothing more from either the MBTA or Ms. Sullivan.

I just sent her the following letter via email:

Dear Ms. Sullivan,

Please tell me the status of my appeal, number [elided], to the public records request I first made to the MBTA on February 13.

I first appealed the MBTA’s response to my request on March 9, an appeal your office ignored. I sent another appeal on April 13, and I finally received a letter from Shawn A. Williams dated April 24 informing me that my appeal had been directed to you for review.

The MBTA’s unjustified rejection of my request is not acceptable. The fact that your office ignored my March 9 appeal is not acceptable. The fact that it has been over a month since my appeal was assigned to you for review and I’ve heard nothing more about it — when one would think that your review would have been expedited because your office ignored my first appeal for over a month — is not acceptable. The fact that it is now over three months after I submitted a simple, straightforward public records request, one which clearly does not fall under any of the exemptions carved out by the law, and I still have not been given access to the information I requested, is very much not acceptable.

Sincerely,

Jonathan Kamens

I am not the only one bothered by the seeming ineffectiveness of the Secretary of State’s office at enforcing the public records law. CommonWealth magazine wrote about it in July 2012. So have many, many other people.

PLEASE NOTE: In my previous blog postings about my attempts to obtain public records from the MBTA, I elided the name of Susan Krupanski, the MBTA attorney handling my request. I have chosen to name her here for two reasons: (1) it is public on Google that Krupanski handles public records requests for the MBTA; and (2) I believe that her handling of my requests is egregiously and unequivocally in violation of the public records law, and as such I no longer feel compelled to protect her privacy in this matter. Also, I have identified above the Supervisor of Records and the attorney handling my appeal by name because both of their names are already in the public record in these roles.