Elise M. Kuehn v. Massachusetts Bay Transportation Authority (SPR 20213175)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 16, 2021 SPR21/3175 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. Previous Appeal This request was the subject of a previous appeal. See SPR21/2913 Supervisor of Records Determination (November 10, 2021). In my November 10th determination, I ordered the MBTA to clarify how the requested records are part of an ongoing investigation, and how the records constitute investigatory materials compiled out of public view. Subsequently, the MBTA responded on December 1, 2021. 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 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. SPR21/3175 Page 2 December 16, 2021 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). 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. Current Appeal In her appeal petition, Attorney Kuehn argues the following: The existence of the cameras is public knowledge, and the production of the video is therefore not maintained outside of public view. Moreover . . . email correspondence [provided with the appeal petition] demonstrates that the video footage from the construction site is not kept solely for the purpose and use of the MBTA Transit Police and has been previously provided to the public for non-law enforcement uses. The MBTA’s December 1st Response In its December 1, 2021 response, the MBTA reiterates that it is denying the request pursuant to Exemption (f) of the Public Records Law. Exemption (f) Exemption (f) permits the withholding of: 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

Julie A. Ciollo, Esq. SPR21/3175 Page 3 December 16, 2021 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. In its December 1st response, the MBTA argues the following: The MBTA’s Transit Police is currently conducting an investigation into occurrences at the MBTA’s Cabot Yard. The video [Attorney Kuehn] requested is evidence in that investigation, that was compiled for the purpose of the investigation. Any incidents and occurrences that may have been captured by cameras at the Cabot Yard have not been publicly disseminated and remain in the exclusive possession of key investigatory personnel. [The MBTA has] consulted with the Transit Police and are told that the investigation remains ongoing. Releasing video prior to its conclusion could prejudice the investigative efforts that have yet to be completed. Where the MBTA has explained the subject of the ongoing investigation and how the video recording pertains to that investigation, and has confirmed that the recording remains in the possession of investigatory personnel, I find the MBTA has met its burden to withhold the responsive record pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Please be advised that a change in the status of the investigation could impact the applicability of Exemption (f) to these records. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Kuehn is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, ~ .f) .d ~ ~ ~ - ~·~- . 0 Rebecca S. Murray Supervisor of Records cc: Elise M. Kuehn, Esq.