Nicole M. Avitabile, Esq. v. Massachusetts Bay Transportation Authority (SPR 20170938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 24, 201 7 SPR17/938 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Place, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition ofNicole Avitabile appealing the response of Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Avitabile requested "a copy of any/all videos, pictures, or reports" relating to an identified incident occurring on "01/05/2017." Unsatisfied with the response ofthe MBTA, Ms. Avitabile petitioned this office and this appeal was opened as a result. 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, § 10A(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, § IO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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

Ms. Julie Ciollo, Esq. SPR17/938 Page 2 July 24, 2017 In accordance with the Public Records Law, a custodian is expected to use his/her superior knowledge of the records in his/her custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). Therefore, the MBTA must use their superior knowledge and assist Ms. Avitabile in obtaining any records responsive to her request. Order Accordingly, the MBTA is hereby ordered to provide Ms. Avitabile with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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 .rna. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Nicole Avitabile, Esq.