Brian Keaney v. Massachusetts Bay Transportation Authority (SPR 20180532)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 4, 2018 SPRlS/532 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Brian Keaney appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Keaney requested "[c]opies of all complaints, comments, and other correspondence (including notes from telephone calls) passengers have made to either the MBTA to to [sic] Keolis about train 740 (leaving Walpole for South Station at 7:40am) in the last year" and "copies of documents showing what actions were taken in response to those complaints." Previous appeal This request was the subject of a previous appeal. See SPR18/287 Determination of the Supervisor of Records (March 20, 2018). I closed SPRlS/287 by ordering the MBTA to provide Mr. Keaney with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. On April 12, 2018, the MBTA provided another response to Mr. Keaney. Unsatisfied with the MBTA's response, Mr. Keaney petitioned this office and SPR18/532 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. SPR18/532 Page2 May 4, 2018 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. Current appeal In his petition for appeal, Mr. Keaney indicates his contention that "based on email and phone conversations [he has] had with [representatives] from Keolis that records do exist showing what actions were taken in response to these complaints." Mr. Keaney included a response from the MBTA dated April 12, 2018, which asserts Mr. Keaney is "now seeking records that are created, maintained and in the sole possession of Keolis. As [a representative of Keolis] informed [Mr. Keaney], these records are not provided to the MBTA. Consequently, they are not subject to the Public Records Law via a request to the MBTA." Mr. Keaney responded to the MBTA's April lih response by including language from SPR18/287 regarding agency relationships as discussed in Fifty-one Hispanic Residents of Chelsea and requesting the MBTA "ask Keolis for the documents, as they are [the MBTA' s] agent." See Fifty-one Hispanic Residents of Chelsea v. School Comm. of Chelsea, 421 Mass. 598,607 (1996). Subsequent to the intervention of a member of the Public Records Division staff, I learned the MBTA had provided a previous response to Mr. Keaney on April 4, 2018, which included "a document listing complaints and responses concerning Franklin Line Train 0740 between March 1, 2017 and March 30, 2018," and indicates the "record was compiled from data received by Keolis." The response further indicated that "[n]o other records [exist] that are responsive to [Mr. Keaney's] request." The MBTA additionally provided correspondence between Mr. Keaney and representatives of Keolis. Mr. Keaney is reminded that under the Public Records Law, a requestor must include all correspondence associated with the request in a petition for appeal. See 950 C.M.R. 32.08(1)(g). Possession, custody or control of responsive records The MBTA's April 4th response indicates that Keolis does not correspond with the MBTA about each complaint. You also explain th.at "the MBT A does not receive records that may be created and used solely by Keolis in response to commuter rail complaints. If Keolis wants to voluntarily share records and information with Mr. Keaney, that is of course their decision. It is improper to request those records from the MB TA, however." In order to determine whether it has met its burden under G. L. c. 66, § 10( a)(ii), to provide records that are in the possession, custody, or control of the custodian ofrecords at the time of the request, I find the MBTA must provide additional information regarding the relationship between it and Keolis. In particular, the MBTA must describe whether the

Julie Ciollo, Esq. SPR18/532 Page 3 May 4, 2018 responsive records, which pertain to complaints from passengers and the actions taken in response to those complaints, are within the scope of an agency relationship with Keolis. See Fifty-one Hispanic Residents of Chelsea, 421 Mass. at 608 ( describing the "extensive supervisory controls" that the school committee had over the university's obligations). Conclusion Accordingly, the MBTA is ordered to provide Mr. Keaney with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. 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: Brian Keaney