Elise M. Kuehn v. Massachusetts Bay Transportation Authority (SPR 20212913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 10, 2021 SPR21/2913 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Attorney Elise M. Kuehn of Lane McNamara LLP 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). On October 13, 2021, Attorney Kuehn requested the following: Any recordings from cameras trained on the outside track area at the Cabot Yard Maintenance Facility (rail) on the north side of the Car House on September 21, 2021 from 6:00 a.m. to 3:00 p.m. Said cameras to include, but not be limited to, (1) camera on pole by Non-Revenue Vehicle Repair, (2) camera on the Heating Plant, (3) camera on the side of the Bus Maintenance Facility, and (4) camera inside the maintenance facility that looks toward the northern doors in the facility. The MBTA responded on October 20, 2021, citing Exemption (f) of the Public Records Law for withholding responsive records. G. L. c. 4, § 7(26)(f). Unsatisfied with the MBTA’s response, Attorney Kuehn appealed, and this case was opened as a result. 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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. SPR21/2913 Page 2 November 10, 2021 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. Att’y 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. Current Appeal In her appeal petition, Ms. Kuehn argues the following: The video requested . . . is video that is recorded by the MBTA as a matter of course and practice. The MBTA is not an investigatory agency nor is its purpose for law enforcement. . . . The mere existence of an investigation is not sufficient to provide for an exemption under G.L. c. 4, § 7(26)(f), nor has the MBTA specifically demonstrated why such an exemption would be necessary. The cameras from which the video was requested are in full view of anyone who enters the Cabot Yard, and the general public is therefore aware that the cameras are present and recording. . . . The simple fact that an investigatory agency, who was not a party to the public record request, has a copy of this video does not preclude its disclosure. . . . The purpose of G.L. c. 4, § 7(26)(f) is not to withhold documentation that is given to an investigatory agency, but is for the purpose of prohibiting disclosure of documents that are creating during the course of an investigation or identifying documents that were compiled by a law enforcement agency for an investigation. [Ms. Kuehn] did not request information regarding any investigation nor did [she] request public records from a law enforcement agency. The MBTA’s October 20th Response In its October 20, 2021 response, the MBTA states that it is withholding responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f) Exemption (f) permits the withholding of:

Julie A. Ciollo, Esq. SPR21/2913 Page 3 November 10, 2021 investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Under Exemption (f), the MBTA argues the following: Video from the locations and date [Attorney Kuehn] cite[s] in [her] request is part of an open and active investigation. Please note that while the MBTA does not currently have the employee or technological resources to search for and archive the amount of video [Ms. Kuehn has] requested, relevant video from September 21, 2021 and within the time period stated has been archived. It is the MBTA’s position that disclosing the requested video prior to the investigation’s conclusion is likely to harm the ongoing investigation efforts by the MBTA and/or other investigative entities. In particular, disclosing video at this time is likely to jeopardize the cooperation of witnesses, hinder investigative efforts by revealing potential leads, or lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation. Therefore, the MBTA is claiming Exemption (f) to withhold the requested video because disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” While the MBTA states that the requested records are associated with an active and ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Additionally, it is unclear how video recordings from cameras that are in full view of the public would constitute “investigatory materials necessarily compiled out of the public view.” See G. L. c. 4, § 7(26)(f). The MBTA must clarify these matters.

Julie A. Ciollo, Esq. SPR21/2913 Page 4 November 10, 2021 Conclusion Accordingly, the MBTA is ordered to provide Attorney Kuehn with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Elise M. Kuehn, Esq.