David M. Hass v. Massachusetts Bay Transportation Authority (SPR 20213356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 11, 2022 SPR21/3356 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Department of Transportation 10 Park Plaza Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of David Hass, Esq. of Law Offices of Burton J. Hass 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 December 7, 2021, Attorney Hass requested the following records for an identified auto accident: 1. Any reports, documents, or records concerning this accident 2. Any photos or videos of the accident, the MBTA bus involved in the accident, or other photos of the scene of the accident. 3. MBTA Case No. 20218382- all records or documents. The MBTA responded. Unsatisfied with the MBTA’s response, Attorney Hass petitioned this office and this appeal, SPR21/3356, 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 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 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. SPR21/3312 Page 2 January 11, 2022 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The MBTA’s November 23rd Response In its November 23rd response, the MBTA cited Exemption (f) to withhold the requested records in its entirety. In a telephone conversation between an MBTA representative and a staff attorney, the MBTA advised that this matter is being criminally prosecuted in Middlesex Superior Court as Commonwealth of Massachusetts v. Wilfredo Antoinio Tobar Sanabria and that the proceedings are related to the requested records. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Hass, Esq.