Michael Saccone v. Massachusetts Bay Transportation Authority (SPR 20220998)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 11, 2022 SPR22/0998 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Michael Saccone of Boston 25 News 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 January 18, 2022, Mr. Saccone requested, “exit interviews for all MBTA Transit Police [and] MBTA officers who left the department in 2021.” Previous appeals This request was the subject of previous appeals. See SPR22/0209 Determination of the Supervisor of Records (February 14, 2022) and SPR22/0659 Determination of the Supervisor of Records (April 4, 2022). The MBTA responded on April 20, 2022. Unsatisfied with the MBTA’s response, Mr. Saccone petitioned this office and this appeal, SPR22/0998, 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 A. Ciollo, Esq. SPR22/0998 Page 2 May 11, 2022 The MBTA’s April 20th Response In its April 20th response, the MBTA cites Exemption (c) to withhold the requested records. In camera inspection In order to facilitate a determination as to the applicability of the MBTA’s claims to withhold the requested records, the MBTA must provide this office an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the MBTA is ordered to provide this office with an un-redacted copy of the requested records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Saccone