Maya Shaffer v. Massachusetts Bay Transportation Authority - Transit Police Department (SPR 20160305)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 17,2016 SPR16/305 Mr. Richard Sullivan Superintendent Massachusetts Bay Transportation Authority Transit Police Department 240 Southampton Street Boston, MA 02118 Dear Superintendent Sullivan: I have received the petition of Maya Shaffer of the Baystate Examiner appealing the response of the Massachusetts Bay Transportation Authority-Transit Police Department (MBTA Police) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer requested a copy of video from the MBTA's Government Center Station depicting a person who later posted photos to the Internet. Previous response and determination The MBTA Police failed to respond to Ms. Shaffer's request, and she appealed. The MBTA Police subsequently did provide a written response, dated April6, 2016. See SPR16/222 Determination ofthe Supervisor of Records (April 7, 2016). In your April6 response you stated, "the incident you referenced relative to the Public Records Law is still under active investigation. Upon conclusion, if any video exists and after consultation with the MBTA Legal Department we will provide." Ms. Shaffer appealed. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Superintendent Richard Sullivan SPR16/305 Page 2 May 17,2016 The MBTA Police has failed to meet its burden under the Public Records Law by not informing Ms. Shaffer whether the records she requested are actually in existence. Further, in order to withhold a public record, the custodian has the burden of claiming one of the enumerated exemptions in the Public Records Law, and specifically explaining how that particular exemption applies to withhold the record or a portion of the record. See G. L. c. 4, § 7(26)(a-u). I find the MBTA Police has failed to respond to a request for public records. Accordingly, the META Police is hereby ordered, within ten (10) days ofthis order, to provide Ms. Shaffer with a written response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. Ifthe META Police maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Shaffer a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. cc: Ms. Maya Shaffer Ms. Marie Breen, Esq.