Peter Wilson v. Massachusetts Bay Transportation Authority (SPR 20180275)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 20, 2018 SPRlS/275 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Peter Wilson on behalf of Scott Tetreault, both of WFXI' Boston 25 News, 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, Scott Tetreault requested "any surveillance and video from Andrew Square MBTA station at the time of the Red Line crash." The MBTA provided a response claiming that the responsive record is exempt from disclosure pursuant to Exemption ( d) of the Public Records Law. G. L. c. 4, § 7(26)(d). 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, § 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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. SPR18/275 Page 2 March 20, 2017 Exemption (d) In its response, the MBTA indicates "the MBTA is withholding release of the requested video, as it is exempt from disclosure pursuant to Massachusetts General Laws ch. 4, sec. 7, clause 26(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 maybe 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. See 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 that "video concerning the subject incident is currently under review by MBTA personnel who are evaluating possible causes and any necessary next steps. Release of the video at this point would negatively impact the MBTA's ability to perform this evaluation and determine any further measures." The MBTA is advised that Exemption ( d) applies only to recommendations on legal and policy matters. Based on the MBTA's response, it is unclear how the responsive video constitutes a recommendation on legal and policy matters or how disclosure would taint the deliberative process. ' Further, the MBTA has not established how the requested video constitutes "inter-agency or intra-agency memoranda or letters" as required by Exemption ( d). It should also be reiterated that any information that is factual in nature is always subject to disclosure as Exemption ( d) does not apply to such information. Therefore, I find that the MBTA has not established how the responsive record is "inter-agency or intra-agency memoranda or letters relating to policy positions being developed" by the MBTA . I understand a Public Records Division staff member contacted you about this matter.

Julie Ciollo, Esq. SPR18/275 Page 3 March 20, 2017 Order Accordingly, the MBTA is hereby ordered to provide responsive records, 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. The MBTA may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Wilson