Andrew McIsaac v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20170585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 11, 2017 SPR17/585 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 Andrew Mcisaac appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Mcisaac requested copies of "all Transit Police arrest/booking reports and cell monitoring reports created on July 4, 2016." In a response dated April 28, 2017, the MBTA denied his request claiming that the responsive records are being withheld under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. G.L. c. 4, § 7(26)(a); G.L. c. 6, § 167. 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, § lOA(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 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, § lO(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. Exemption (a) The MBTA denied Mr. Mclsaac's request for the responsive records pursuant to the 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. SPR17/585 Page2 May 10, 2017 CORI Act as it operates through Exemption (a). Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G.L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't ofEnvtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that the MBTA cited to withhold the requested records, pursuant to Exemption (a) is the CORI Act. G.L. c. 6, § 167. CORI, which is statutorily exempt from disclosure, is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G.L. C. 6, § 167. The MBTA's response did not contain the specificity required in a denial of access to public records. Instead, the MBTA's response merely cites Exemption (a) and the language of the CORI Act without any further explanation as to the exemption's applicability to the requested records. The MBTA is not permitted to issue a blanket denial without providing any further information with respect to the requested records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. It is also unclear why the requested records must be withheld in their entirety, and why it is not possible to redact exempt portions and release the remainder. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a ).

Julie A. Ciollo, Esq. SPRl 7/585 Page 3 May 10, 2017 Conclusion Subsequent to conversations with a member of the Public Records Division staff, you explained that you were in the process of reviewing the requested records to determine if any records may be redacted and provided, and that you would be providing Mr. Mclsaac with a supplemental response to his request. I will therefore consider this administrative appeal closed with the proviso that this response is provided 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 this response to this office at pre@sec.state.ma.us. Sincerely, ·~~ Supervisor of Records cc: Andrew Mclsaac