Official: MassDOT fails to release Casey records

December 7, 2012
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The state Department of Transportation (MassDOT) has failed to comply with 10 outstanding requests for public information on the Casey Arborway process, according to officials, and is asking over $4,000 of a Jamaica Plain resident to release the documents.

The state Supervisor of Public Records has said that MassDOT has “failed to meet its burden” and has ordered the agency to either release the documents or at least release a detailed breakdown of costs to release each of the 10 requests.

“When someone fights to keep public records private, one can infer that there’s something there they don’t want the public to know,” state-selected Design Advisory Group (DAG) member Kevin Moloney told the Gazette. The DAG was selected by MassDOT to inform its decisions on the project after the community demanded input.

Moloney first made the Freedom of Information Act (FOIA) requests to MassDOT for emails, traffic analyses, cost estimates and other data pertaining to the Casey Arborway project in June, with particular focus on communications before the public process started and documents that outline MassDOT’s decision to demolish the overpass in favor of a new street network.

Moloney said he has not yet received either the documents he requested or a satisfactory reason why they cannot be released. The state has quoted the cost of preparing Moloney’s requested documents at $4,189.68.

FOIA requests must be replied to within 10 days. The reply can include the requested document, an explanation why the document cannot be released or a cost breakdown of preparing the documents.

“An initial search produced well over 5,000 separate documents and attachments that may be responsive to these requests,” MassDOT spokesperson Michael Verseckes told the Gazette. “In addition, the statute provides for a charge based on the hourly wage of the lowest paid employee who is capable of performing the task of sifting through the documents and determining what is responsive to the request. The specifics of this request are such that there are no low-wage employees [like an intern] who would have the depth of understanding [to fulfill it].”

“[MassDOT is] either doing it because they’re incompetent or because they don’t want the public to see some of these records were looking for,” Moloney said. “They seem to be playing hardball.”

Following MassDOT’s unsatisfactory responses, Moloney appealed to the state Supervisor of Public Records through a private attorney in August.

“I find that MassDOT has failed to meet its burden of properly responding to Mr. Moloney’s 10 separate public records request letters, and has failed to meet its burden of providing a detailed, written good faith estimate for all the responsive records,” Supervisor of Records Shawn Williams writes in the three-page Nov. 27 letter to MassDOT, a copy of which Moloney provided to the Gazette.

“[A September] MassDOT response and estimate is not in compliance with the Public Records Law and its Access Regulations, as it does not contain the necessary specificity,” Williams writes.

Moloney first appealed to the Public Records Division of the Secretary of the Commonwealth’s office in August and then again in September. Public Records does not have the power to enforce its determinations.

When the Gazette requested copies of the last three Casey safety reports generated by MassDOT, the costs quoted to the Gazette was $24, the cost of a staffer photocopying 120 pages.

The Casey Arborway, an at-grade surface street network, will replace the crumbling Casey Overpass. The Casey Overpass is the State Route 203 bridge over Washington Street at the Forest Hills T Station.

The state Casey project website is massdot.state.ma.us/caseyoverpass.

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