Nicole M. Avitabile, Esq. v. Massachusetts Bay Transportation Authority (SPR 20171497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 23, 2017 SPR17/1497 Julie Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Attorney Nicole A vitab ile appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to her request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile requested various records within the possession of the MBT A concerning a fatality of an identified individual. In the MBTA's September 28, 2017 response, you explain "the MBTA does not possess any photos or videos in connection with the subject incident." Subsequent to the intervention by a staff member of the Public Records Division, I learned that you reiterated that the MBTA does not possess any photos or videos in connection with the subject incident. Under the Public Records Law, the MBTA is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). Nonetheless, a representative from the MBTA assured a Public Records Division staff member that a supplemental response would be provided that addresses the concerns outlined in Attorney Avitabile's appeal, specifically with respect to the redacted information. Accordingly, I will consider this administrative appeal closed with the proviso that the MBTA provide Attorney Avitabile with said response within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Avitabile may appeal the substantive nature ofthe MBTA's response within ninety days. See 950 C.M.R. 32.08(1). 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. SPR17/1497 Page 2 October 23, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Nicole Avitabile, Esq.