David M. Hass v. Massachusetts Bay Transportation Authority (SPR 20180160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 20,20 18 SPR181160 Julie A. Ciollo, Esq. Assistant General Counsel MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02 1 16 Dear Attorney Ciollo: I have received the petition of David Hass, Esq. appealing the response of the Massachusetts Department of Transportation (MBTA) to a request for public records. G. L. c. 66 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Hass requested copies of "[all1 accident or incident reports pertaining to the accident described on the claim form (hereinafter "the accident"); all documents evidencing, describing, pertaining or relating to any allegation or suggestion of how the accident occurred; all documents evidencing, describing, pertaining or relating to the names and most current known address of each and every person who was a witness to the accident and all photographs and videotapes of the vehicles in question during the time frame in question" regarding an incident involving his client. The MBTA provided a response dated January 18,2018 in which it withheld responsive records under Exemption (d) of the Public Records Law. G. L. c. 4, 5 7(26)(d). Purpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. Bouaas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Attorney Hass' purpose in malting the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access io records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (19 98). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not One Ashbwton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832- Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Julie A. Ciollo, Esq. Page 2 February 20,20 18 apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Hass may wish to consider another means of seeking to obtain any existing responsive records. 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, 5 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (d) In its January 18 thr esponse the MBTA indicates it is withholding records under Exemption (d). Exemption (d) allows the withholding of: 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 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. See Babets v. Sec'v 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, 5

Julie A. Ciollo, Esq. Page 3 February 20,20 18 7(26)(d); see also Envtl. Protection Agency v. Mink, 4 10 U.S. 73, 89 (19 73) (purely factual matters used in the development of government policy are always subject to disclosure). The MBTA indicates "tilt is the MBTA's position that the records fall into the deliberative process exemption due to open and unresolved potential claim of injury to your client, and that specific requests reveal that litigation is likely imminent." However, it is unclear what type of responsive records the MBTA has and how they are "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency" as required by Exemption (d). See G. L. c. 66, 5 lO(b)(iv); Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 5 1 1 (1 995) (custodian has the burden of establishing the applicability of an exemption). Further, the MBTA must explain whether any non-exempt, segregable portion of the responsive records can be provided. G. L. c. 66, 5 10(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). This office encourages the MBTA and Attorney Hass to communicate further to enable the MBTA to provide requested public records. G. L. c 66, 5 10(a)(i) (the request must reasonably describe the public record sought). Attorney Hass' appeal states the "request has been denied. Please help me obtain these records." A more detailed request from Attorney Hass will allow the MBTA to fulfill their duty to comply with requests for records which 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, 5 1O (a)(ii). The MBTA must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, §lO(b)(vii) (a state agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the MBTA is ordered to produce responsive records in its possession in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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. The MBTA may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Julie A. Ciollo, Esq. Page 4 February 20,20 18 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Hass, Esq.