Matthew Stout v. Massachusetts Bay Transportation Authority (SPR 20171446)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 23, 2017 SPR17/1446 Julie Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Matt Stout ofthe Boston Herald 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, Mr. Stout requested "[a]ll e-mails and written communications sent to and from then-interim GM Steve Poftak, deputy GM Jeff Gonneville and chief railroad officer Ryan Coholan regarding the Sept. 6 incident involving a Newburyport line train that had its rear coach car uncouple from the rest of the train." In a response dated September 21, 2017, the MBTA denied access to responsive records under Exemptions (d) and (f) ofthe Public Records Law. G. L. c. 4, § 7(26)(d), (f). 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, § 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 .. 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, Esq. SPR17/1446 Page2 October 23, 2017 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. The MBTA 's September 21st response In its September 21st response, the MBTA cites Exemptions (d) and (f) to withhold responsive records. Exemption (d) Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause 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 Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from 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 subject to disclosure). The MBTA asserts "[t]he records you seek relate directly to an ongoing deliberative process. Specifically, they have either been created for or are being used for the express purpose of discussing and deliberating the incident of September 6th and the MBTA's response to same. Accordingly, the records in question fall within the scope of exemption (d)." The MBTA has not met its burden to demonstrate the nature of this deliberation. Further, it is unclear whether purely factual matters are contained within the records. Therefore, the MBTA has not met its burden to withhold responsive records in their entirety under Exemption (d). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (f) Exemption (f) permits the withholding of:

Julie Ciollo, Esq. SPR17/1446 Page 3 October 23, 2017 investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by- . case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. With respect to the applicability of Exemption (f), the MBTA asserts "[t]he incident of September 6th is currently under investigation by the MBTA . The disclosure of any records that are pertinent to the investigation- particularly communications about the incident between the individuals specified -would compromise the investigation by prematurely releasing details as to the nature and possible causes of the incident before a full analysis is complete." However, the MBTA has not explained the nature of the investigation, nor is it clear how disclosure of any portion of the responsive records "would probably so prejudice the possibility of effective 1aw enforcement that such disclosure would not be in the public interest." Therefore, the MBTA has not met its burden to withhold responsive records in their entirety under Exemption (f). I understand a Public Records Division staff attorney contacted you and you indicated the MBTA will provide a supplemental response regarding this matter. Conclu,sion Accordingly, I will consider this appeal closed with the proviso thatthe MBTA provide Mr. Stout with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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.

Julie Ciollo, Esq. SPR17/1446 Page4 October 23, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Matthew Stout