Andrew Quemere v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20202067)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5, 2020 SPR20/2067 Julie Ciollo, Esq. Assistant General Counsel/Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Andrew Quemere appealing the response of the Massachusetts Bay Transportation Authority (Authority/MBTA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 23, 2020, Mr. Quemere requested the following records: [1] The MBTA Transit Police Department’s current use-of-force policies [2] A blank copy of each form used to report use-of-force incidents (if the form is part of a computer program and is not easily exportable, it is acceptable to provide screenshots) [3] All division-wide and department-wide use-of-force reports/audits for the years 2009 to the present (by division-wide and department-wide, I mean reports/audits that examine use of force by an entire division or the entire department, not reports/audits about a specific use-of-force incident) [4] All data on use-of-force incidents that are stored by the department’s use-of- force tracking software [5] All numerical/statistical reports that can be exported from the department’s use-of-force tracking software (e.g., reports showing the total number of incidents per year, the total number of incidents involving each officer, etc) [6] If the department does not use software to track use-of-force incidents, please provide any other data about use-of-force incidents in the department’s possession[.] The Authority responded on October 15, 2020, providing certain responsive records and indicating it does not possess records responsive to other portions of the request. Unsatisfied with the Authority’s response, Mr. Quemere petitioned this office and this appeal, SPR20/2067, 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

Julie Ciollo, Esq. SPR20/2067 Page 2 November 5, 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, § 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); 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, § 10(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 October 15th response Requests 1 and 2 In its October 15, 2020 response, the Authority enclosed “[t]he MBTA Transit Police Department’s current use-of-force policies” and “[s]creen shots of the entry form used to report use-of-force incidents” responsive to requests 1 and 2, respectively. Requests 3, 4, and 5 With respect to requests 3 to 5, the Authority states that “. . . it has been determined that the MBTA does not possess or control any responsive records. More specifically, . . the MBTA’s Transit Police does not conduct audits of use of force incidents. Rather, each use of force incident, identified by Transit Police personnel using the forms provided to you for Request #2, goes through an individualized review process by Transit Police Command Staff. Therefore, the MBTA does not possess use of force reports/audits, data or reports from use of force tracking software. . . .” Request 6 With respect to request 6, the Authority states that “. . . between January 2015 and the current date, there have been approximately 375 use of force reports made by Transit Police personnel. Please bear in mind, however, that certain incidents can cause more than one report to be generated. For example, if three officers respond to an incident and force is used, each of the three officers must submit a use of force report.”

Julie Ciollo, Esq. SPR20/2067 Page 3 November 5, 2020 Subsequent to the opening of this appeal, I learned that on November 5, 2020, the Authority provided the requestor with a supplemental response which included responsive records pertaining to this request. Conclusion Accordingly, I will consider this administrative appeal closed. Mr. Quemere may appeal the substantive nature of the Authority’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere