Justin D. Powers v. Massachusetts Bay Transportation Authority (SPR 20192110)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 28, 2019 SPR19/2109; SPR19/2110 Julie A. Ciollo, Esq. Assistant General Counsel/Records Access Officer Massachusetts Bay Transpo1iation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Justin D. Powers, an Investigator at the Committee for Public Counsel Services, 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. Powers requested recordings from cameras at particular MBTA stations. While Mr. Powers made two separate requests to the MBT A and to the Depaiiment of Transportation, this office was informed that the MBTA is the proper record custodian for both of Mr. Power's requests. Please be advised, both of Mr. Powers requests pertain to the same record custodian for requests of video recordings from MBTA cameras, and the same exemption claim of Exemption (n); therefore, this office has combined both administrative appeals, SPR19/2109 and SPR19/2110, in this determination. SPR19/2109 Mr. Powers requested: " ... video records from cameras located at or near the entrances to Chinatown Station on Washington Street, including any recordings of the vestibule area immediately adjacent to the sidewalks, for the period from 7: 15 pm through 8 :00 pm on 9/15/19." In an October 15, 2019 response from Sonia L. Skinner, Esq., the MBTA denied the request under Exemption (n) of the Public Records Law. MBTA's response also states," ... any video request be accompanied by at least two pieces of information: (1) a detailed description of what you expect the responsive video to show; and (2) whether this request concerns a criminal matter. This information is critical to making a determination under 950 C.M.R. 32.06(2)(h)(l)." 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 A. Ciollo, Esq. SPR19/2109; SPR19/2110 Page 2 October 28, 2019 SPR19/2110 Mr. Powers requested: " ... video recordings created by surveillance cameras in Boylston Street station inbound toward Park St., specifically of the platform and tracks, for the period from 9:15 am on 10/1/19." In an October 15, 2019 response, MBTA, through its Records Access Officer Julie Ciollo, requested Mr. Powers specify the purpose of his request under 950 C.M.R. 32.06(2)(h)(l) so MBTA Security's Department can make a determination regarding the release of the video footage. The MBTA also states, " ... please keep in mind that video is only available for approximately 30 days before being automatically overwritten." Mr. Powers petitioned the Supervisor for assistance in obtaining the video recording, and administrative appeal SPR19/2110 was opened. 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) (written response must "identify . any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). Exemption (n) During an October 21, 2019 conversation with you, and in reviewing Mr. Powers' October 15th petitions, this office learned that the MBTA is claiming Exemption (n) to withhold the requested video recording pertaining to both of Mr. Powers' requests. Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record

Julie A. Ciollo, Esq. SPR19/2109; SPR19/~110 Page 3 October 28, 2019 custodian, subject to review by the supervisor of public records under subsection (c ) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(11). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute," specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA deci.sion further provides that "[b] ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus .on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. I find the MBTA has not provided "sufficient factual heft" to conclude that a reasonable person would agree that disclosure of the records, even in redacted format, is "likely to jeopardize public safety or cyber security" as required by Exemption (n). Id. at 290-91. Burden ofs pecificity; duty to segregate The MBTA denied Mr. Power's request without providing any support for its Exemption (n) claim to withhold the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The MBTA did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The MBTA must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a ). The MBTA did not identify the records or portions of records in its possession that it intends to withhold from disclosure under Exemption (n). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the MBTA withheld records without identifying the records it has in its possession. In its responses, the MBTA asked Mr. Powers about the nature of his request, and whether the records pertained to any particular incident at the MBTA stations, or any particular person who may be involved in a particular incident at the MBTA stations. It is this office's understanding from reviewing the responses and from engaging in conversation with you, that if

Julie A. Ciollo, Esq. SPR19/2109; SPR19/2110 Page 4 October 28, 2019 Mr. Powers is seeking records regarding any particular client or incident involving a client whether civilly or criminally, the MBTA may be able to provide records outside the restrictions of the Public Records Law and its exemptions. I also encourage the paiiies to work together and communicate in order to resolve the request and facilitate the provision of any public records that the MBTA may have in its possession that can be disclosed. Conclusion Accordingly, the MBTA is ordered to provide Mr. Powers with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Sincerely, ~a~ Supervisor of Records cc: Justin D. Powers