Diego Ibarguen, Esq. v. Massachusetts Bay Transportation Authority (SPR 20170635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 17, 2017 SPR17/635 Julie Ciollo Records Access Officer Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 3910 Boston, MA 02116 Dear Ms. Ciollo: I have received the petition of Diego Ibarguen, Esq. of the Hearst Corporation on behalf of his client Jonathan Wells of WCVB-TV Boston appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Jonathan Wells requested a copy of all photographs, audio recordings and documents related to the termination of employment of an identified MBTA transit police employee. In a May 9, 2017 response, MBTA denied the request pursuant to Exemptions ( c) and ( d) of the Public Records Law. Attorney Ibarguen appealed the denial on behalf of Mr. Wells. 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); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 Ciollo SPR17/635 Page 2 May 17, 2017 Exemption (c) The MBTA has claimed that the records are exempt under the first clause of Exemption ( c) as personnel information. Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption (c ) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). An attorney in the Public Records Division spoke with you on May 12th and explained that the MBTA should specify whether the investigation was an internal affairs investigation versus a personnel investigation under Wakefield. You explained that the matter that was investigated did not rise to the level of a formal internal affairs investigation and you were asked to detail this information in your supplemental response to Attorney Ibarguen. Exemption (d ) The MBTA also cited Exemption ( d) as applicable to withholding records concerning ongoing legal proceedings involving an identified transit officer. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7 (26)( d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Exec. Office of Human Services, 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from

Julie Ciollo SPRl 7/635 Page 3 May 17, 2017 factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.). The MBTA did not specify how disclosure of the records, even in redacted format would taint an on-going deliberative process under Exemption ( d). Furthermore, the MBTA did not explain what deliberative process is still on-going, as Attorney Ibarguen believes that the investigation of the identified transit officer has been concluded. Segregable portion The MBTA's May 9, 2017 response did not met the burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. 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, § lO(a). You indicated in your May lih conversation with the Public Records Division attorney, that you will review the responsive records and provide a more detailed response regarding the exemptions claimed, and will provide any records or portions of records not subject to Exemptions (c) and (d) of the Public Records Law. · Accordingly, whereas the MBTA indicated that it will provide Attorney Ibarguen with a detailed written response to the request, in accordance with the Public Records Law, the Access Regulations and this order within ten (10) business days, this administrative appeal is now closed. 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. Attorney Ibarguen may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Diego Ibarguen, Esq.