Cam Goggins v. Massachusetts Bay Transportation Authority (SPR 20220426)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 7, 2022 SPR22/0426 Julie Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite #7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Cam Goggins, of Live Boston 617 Inc., appealing the response of the Massachusetts Bay Transportation Authority (Authority) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 21, 2022, Mr. Goggins requested: [T]he report and associated booking photo of [a named individual] who was arrested by your agency on Feb 17 of this year. Additionally we also request the report, booking photo and any other information you can provide us on the call that occurred at approximately 1900 hours yesterday in the area or Morton Street that resulted in at least one arrest by TPD. The Authority responded on February 21, 2022, denying access to the responsive records. Unsatisfied with the Authority’s response, Mr. Goggins petitioned this office and this appeal, SPR22/0426, 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). 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. 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. SPR22/0426 Page 2 March 7, 2022 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 February 21st response In its February 21, 2022 response, the Authority asserts, “[b]ooking photo not available. Pending criminal case, we are not releasing the report.” Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. 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 …”) see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also 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). The Authority’s response did not contain the specificity required in a denial of access to public records. Instead, the Authority simply denied the release of responsive records without claiming any exemption(s) in the Public Records Law to support the withholding of responsive documents. Consequently, I find the Authority has not established how it can withhold the record(s) at issue from disclosure. The Authority must clarify this matter. Conclusion Accordingly, the Authority is ordered to provide Mr. Goggins with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Julie Ciollo, Esq. SPR22/0426 Page 3 March 7, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Cam Goggins