Florence Tawiah v. Worcester Regional Transit Authority (SPR 20190091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 29, 2018 SPR19/0091 Elizabeth R. Pokoly Worcester Regional Transit Authority 60 Foster Street Worcester, MA 01608 Dear Ms. Pokoly I have received the petition of Florence Tawiah appealing the response of the Worcester Regional Transit Authority (Authority) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 7, 2018, Ms. Tawiah requested the following records: "1. Bus monitoring/Video of Route 30 Bus, Inbound trip of driver passing [a named individual]. 2. Bus monitoringNideo of Route 26 Bus, Inbound trip of [a named individual] getting on the bus. 3. Video Of Downtown Hub bus terminal and video of the buses that the white male driver tells Black driver that the driver left me behind because she is like you. 4. The complaint of incident that was filed with the [Authority] on or about September 17,2018. 5. The email that was sent to the Director of Risk management and city hall of driver incident report of description of the incident." Previous appeal The requested record was the subject of a previous appeal. See SPRl 8/2070 ih Determination of the Supervisor of Records (January 7, 2019). In my January determination, I ordered the Authority to provide Ms. Tawiah with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the ?111 January determination, the Authority, in an email correspondence dated January 9, 2019, notified this office that it had provided a response to Ms. Tawiah on January 2, 2019. In the January 2nd response, the Authority denied access to the responsive records because, they are not public records. Unsatisfied with the Authority's response, Ms. Tawiah petitioned this office and this appeal, SPR19/0091, was opened as a result. 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

Elizabeth Pokoly SPR19/0091 Page 2 January 29, 2019 Purpose of request; identity of requestor 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. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Tawiah's purpose in making the request has no bearing on the public status of 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, § 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, § 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 Authority's January 2nd response In its January 2, 2019 response, the Authority indicates that Ms. Tawiah' s " ... request for video tape of the incident or any subsequent discussion between drivers of buses on that route that day is denied on the grounds that these video recordings are not public records but the property of First Transit, the private firm retained to operate the bus service for the [Authority]." Public records; agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). In the Authority's response, it indicates that the requested records are not public records because the records are the property of a private firm, First Transit. However, the Authority also

Elizabeth Pokoly SPR19/0091 Page 3 January 29, 2019 indicates that it has retained the services of First Transit " ... to operate the bus service for the [Authority]." As such, it is unclear how an agency relationship does not exist between the Authority and First Transit. Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea, 421 Mass. at 607 (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Consequently, based on the Authority's response it is unclear whether there is an agency relationship between the Authority and First Transit. As such, I find the Authority must provide additional information regarding the relationship between it and First transit in order to determine whether it has met its burden under G. L. c. 66, § lO(a)(ii), to provide records that are in the possession, custody, or control of the custodian ofrecords at the time of the request. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Authority is ordered to provide Ms. Tawiah 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(msec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Florence Tawiah