Nicole M. Avitabile, Esq. v. Massachusetts Bay Transportation Authority (SPR 20171638)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 6, 2017 SPR17/1638 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 of Nicole Avitabile, Esq. appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, in a request dated October 19, 2017, Attorney Avitabile requested "any and all public records in your possession, custody, and/or control related to an accident on 01/05/2017 including, but not limited to, any reports, photos or videos." Attorney Avitabile provided the name of a passenger involved in the accident as well as a police report related to the incident. Indicating that she had yet to receive a response, Attorney Avitabile appealed to this office. 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, § 1O (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. SPRl 7/1638 Page 2 December 6, 201 7 The MBTA 's response In an email dated November 21, 2017, you explain that the email used by Attorney Avitabile to submit the request is no longer being used for public records requests in light of the MBTA's new public records request portal. With respect to the requested records, you indicate that "your request has already been processed. You sought the same records in a previous request (May 22, 2017) and appeal (SPR 17 /938). On August 11, 2017, I provided you with the attached letter stating that the MBTA did not possess any records that were responsive to your request. That has not changed." It appears Attorney Avitabile's October 19th request may be broader than the request referenced in the MBTA's August 11th response. In a response to Attorney Avitabile dated December 5, 2017, you explain "[t]he MBTA, through its Transportation Police, Security and Operations' Departments, is without any records concerning the below-described incident on the date and time and location specified. No other department would have custody ofresponsive records." You further explain that "[t]he location in question is a stop on several high-traffic MBTA bus routes, and simply providing a date, a rough time and address is insufficient to identify a particular bus." You also note that the report referenced by Attorney Avitabile is from the Boston Police Department and that "the subject report makes no reference to any MBTA personnel who was present at the scene of this incident." With respect to any responsive records that may have existed, you assert"[e ]ven if assuming, solely for the sake of argument, that video capturing this incident did exist at one point in time, that video is no longer available." You also explain that "[v]ideo from busses are maintained only for a period of approximately 4 weeks before being deleted or written over in the normal course. Therefore, even if the subject bus could be identified, any video from that bus showing any occurrences from January 5, 2017 is no longer available." 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Accordingly, I find the MBTA has met its burden to explain how it does not possess responsive records and has described the applicability of relevant retention policies. See Statewide Records Retention Schedule F4-03 (a) (the retention period for security and surveillance tapes is "until administrative use ceases"). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Nicole Avitabile, Esq.