Brian McCarter v. Massachusetts Bay Transportation Authority (SPR 20192350)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

December 4, 2019 SPR19/2350

Julia A. Ciollo, Esq. Assistant General Counsel MBTA Law Department 10 Park Plaza, Suite 7760 Boston, MA 02116

Dear Attorney Ciollo:

I have received the petition of Brian McCarter of MuckRock News appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. McCarter requested “policies, procedures, guidelines and requirements to fire an MBTA employee.”

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, § 10A(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, § 10(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).

Current Appeal

In its November 20, 2019 response, the Authority indicates that it has withheld responsive documents pursuant to Exemption (b) of the Public Records Law.

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

Julia A. Ciollo, Esq. SPR19/2350 Page 2 December 4, 2019

Exemption (b) Exemption (b) permits the withholding of:

records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding

G. L. c. 4, $ 7(26)(b).

. There are no authoritative Massachusetts decisions interpreting Exemption (b), The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 US. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act).

The courts have interpreted the federal exemption to allow withholding of materials that,

if released, could cause agency rules or regulations to be circumvented. See Fiumara vy. Higgins, 572 F, Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable - outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). —

Under its Exemption (b) claim, the Authority states that the requested records are “contained in internal-only disciplinary materials that are not for public dissemination. Indeed, they are records that are ‘related solely to internal personnel rules and practices of the MBTA’ and have no public application.”

While the Authority has indicated that the requested records are “related solely to internal personnel rules and practices” of the Authority, it is unclear why withholding the records is required for the “proper performance of necessary government functions.” The Authority must clarify this matter.

Conclusion

Accordingly, the Authority is ordered to provide Mr. McCarter with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Julia A. Ciollo, Esq. SPR19/2350 Page 3 December 4, 2019

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,

Rebeca Munna

Rebecca S. Murray Supervisor of Records

cc: Brian McCarter, MuckRock News