Ryan Kath v. Massachusetts Bay Transportation Authority (SPR 20220910)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 2, 2022 SPR22/0910 Julio 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 Ryan Kath, of NBC 10 Boston, 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 March 28, 2022, Mr. Kath requested “. . . all video showing the moment a portion of the Government Center garage collapsed above a MBTA subway line on Saturday, March 26.” The Authority provided a response on April 13, 2022 denying access to the responsive records pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the Authority’s response, Mr. Kath petitioned this office and this appeal, SPR22/0910, 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. 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. 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. SPR22/0910 Page 2 May 2, 2022 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 April 13th response In its April 13, 2022 response, the Authority asserts “. . .currently, your public records request seeks information that is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(f), which exempts certain investigatory materials. Specifically, it applies to materials necessarily compiled out of the public view by investigatory officials. At this time, we have determined that the release would prejudice the possibility of effective law enforcement and, therefore, its release would not be in the public interest.” In a telephone conversation between a representative of the Authority and this office, the Authority confirmed that the responsive record pertains to an active and ongoing investigation. 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 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 289-90. Where the video recording pertains to an ongoing investigation disclosure of which would prejudice the investigation, I find the Authority may permissibly withhold the responsive record from disclosure under Exemption (f) at this time. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f).

Julie Ciollo, Esq. SPR22/0910 Page 3 May 2, 2022 Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan Kath