Joseph Viglione v. Massachusetts Bay Transportation Authority (SPR 20200258)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 24, 2020 SPR20/0258 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Joseph Viglione 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. Viglione requested: 1. Any documents containing disciplinary action against MBTA bus driver (identified by employee number); 2. Any documents containing complaint letters from MBTA customers or any other source, not necessarily from those working or riding with the MBTA , but any documents with complaint letters that the MBTA has on file; 3. Any documents, newspaper reports or other media or internal memos, emails detailing any possible criminal history regarding the bus driver that the MBTA riders should be aware of; and 4. The name and address of the bus driver. No responsive records In its response, MBTA indicates that it has no records responsive to Mr. Viglione's Request Numbers 1, 2 and 3. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). In addition, the MBTA informed Mr. Viglione that it cannot assist him with his request for an employee name. The MBTA has withheld the requested employee name and home address of an MBTA bus driver pursuant to Exemption ( o) of the Public Records Law. As a result, Mr. Viglione petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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. SPR20/0258 Page 2 February 24, 2020 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, § IOA(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 (o) Exemption ( o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or· authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 1 SOE, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(0). Whereas, Exemption ( o) will allow the MBTA to withhold the requested home address of the MBTA employee, I find the MBTA has met its burden with respect to home address. However, the MBTA may not withhold the requested employee's name under Exemption (o) of the Public Records Law. Conclusion Accordingly, the MBTA is ordered to provide Mr. Viglione 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.

Julie A. Ciollo, Esq. SPR20/0258 Page 3 February 24, 2020 Sincerely, ~~ Supervisor of Records cc: Joseph Viglione