Friedrich Lu v. Massachusetts Bay Transportation Authority (SPR 20211071)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2021 SPR21/1071 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 Friedrich Lu 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.M.R. 32.08(1). Specifically, Mr. Lu requested: the name of the driver of bus route 10 (City Point to Copley; number 1907) on April 8, 2021 around 6:45 am. Dissatisfied with the Department’s April 12, 2021 response, Mr. Lu appealed to this office. 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). 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. 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. SPR21/1071 Page 2 May 10, 2021 After this appeal was opened, the MBTA sent a May 6, 2021 email to this office indicating, “[t]he MBTA’s position on this appeal is that we have identified the bus operator with the operator’s unique employee number but allows for some privacy.” Burden of specificity; duty to segregate The MBTA denied Mr. Lu’s request for the “name” of the bus operator; however, the MBTA did not claim an exemption in the Public Records Law to support the withholding of the responsive information. Under the Public Records Law, the burden shall be upon the custodian to demonstrate with specificity the exemption which applies. G. L. c. 66, § 10(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 name of the bus operator is exempt from disclosure as a privacy matter. 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). Based on a conversation between a Public Records Division attorney and an attorney from the MBTA, it is my understanding that the MBTA intends on providing a subsequent response to Mr. Lu. Conclusion Accordingly, the MBTA is ordered to provide Mr. Lu 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. Mr. Lu may appeal the substantive nature of the response within 90 calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Friedrich Lu