Friedrich Lu v. Massachusetts Bay Transportation Authority (SPR 20190971)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2019 SPR19/0971 Sonia Skinner, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Skinner: I have received the petition of Mr. Friedrich Lu appealing the response of the 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, Mr. Lu requested: "(1) name of MBTA police officer 541 (in 2016). (2) names (and badge numbers, if any) of three members ofMBTA security personnel ( one was a MBTA police officer; the other two claimed having police power; all three wore black uniform(s)) who were physically present and involved in white paint on a front wall of MBTA Back [Bay] subway station and then me (also there), from around 11 :10 pm to shortly after midnight (almost an hour). (3) (a) Names ofMBTA police officers whose badge numbers are 1108 and 1124, respectively. (b) Name of a janitor ( or one who performs custodial service) at the Kendall MBTA subway station at 5:30 pm, Sunday, Apr 14, 2019, as well as name and address of the company he works for. (4) The recycle policy, if any, ofMBTA regarding paper generated by and collected from subway customers -- hence excluding office paper." Previous Appeal This request is the subject of a previous appeal. See SPRl 9/0842 (May 10, 2019). I closed SPR19/0842 upon learning that the MBTA had provided Mr. Lu with a response to his request. In his May 1i h appeal, Mr. Lu indicated that he was unsatisfied with the response. This appeal, SPR19/0971, was opened as a result. 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 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

Sonia Skinner, Esq. SPR19/0971 Page 2 May 31, 2019 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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). Use of custodian's superior knowledge Under the Public Records Law, the MBTA is not required to create a record in response to a public records request. See G. L. c. 66, § 6A( d). 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). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Further, please note that under the Public Records Law Access Regulations, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nomesponsive and exempt data." 950 C.M.R. 32.07(1)(f). The MBTA 's May 2nd Response In their May 2nd response, the MBTA indicates that because the request seeks "information, not documents" they could not "assist [Mr. Lu] with [his] request for items 1 - 3 above." In his appeal, Mr. Lu asserts that "there must be records within the MBTA (say, it's police department) correlating MBTA officers with badge numbers, as well as which officers worked at and/or was summoned ... to MBTA Back Bay Station."

Sonia Skinner, Esq. SPR19/0971 Page 3 May 31, 2019 Order In light of the above information, I find that the MBTA must clarify whether they are in possession of documents that contain the information Mr. Lu has requested. Accordingly, MBTA is ordered to provide Mr. Lu 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: Friedrich Lu