Matthew Stout v. Massachusetts Bay Transportation Authority (SPR 20171600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 28, 2017 SPR17/1600 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 of the 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." Previous appeal This request was the subject of a previous appeal. See SPRl 7/1446 Determination of the Supervisor of Records (October 23, 2017). I closed SPRl 7/1446 with the proviso that the MBTA provide Mr. Stout with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The MBTA provided a response dated November 9, 2017 that did not include responsive records. Mr. Stout appealed and SPRl 7 /1600 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, § 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). 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. SPRl 7/1600 Page2 November 28, 2017 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. 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. The MBTA's November 9th response In its November 9th response, the MBTA indicates "the September 6th commuter rail incident remains under investigation and part of an ongoing deliberative process at the MBTA, and for those reasons the MBTA continues to assert that communications relating to this matter are exempted under the Public Records Law." However, the nature of the deliberation and/or investigation remains unclear and the MBTA has not met its burden to withhold these records in their entirety under Exemptions (d) and (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In responding to Mr. Stout, you also explain that "in order to provide you with a supplemental response that more specifically addresses the nature of the communications you seek, I first need to refine what records are responsive to your request." You assert that the request is "insufficient to determine precisely which communications are responsive to your request" due to a lack of a specific date range and specific keywords. You further note that "[o]nce you have refined your request with additional specificity, I will be able to provide you with a more meaningful and detailed supplemental response." Due to the fact that Mr. Stout's request includes names of individuals, as well as the date and a description of the incident, I find this request reasonably describes the records sought. See G. L. c. 66, § lO(a)(i); see also See 950 C.M.R. 32.04(5) (a custodian is expected to use his or her superior knowledge of the records in his or her custody to assist the requester in obtaining the desired information). Accordingly, the MBTA must provide Mr. Stout a supplemental response that is in compliance with the Public Records Law, this order, and the October 23rd order. See G. L. c. 66, § lO(b)(iii)-(iv). I understand a Public Records Division staff attorney contacted you about this matter.

Julie Ciollo, Esq. SPRI 7/1600 Page3 November 28, 2017 Conclusion Accordingly, the MBTA is ordered to 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Stout