Erica Jorgensen v. Massachusetts Bay Transportation Authority (SPR 20222452)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2022 SPR22/2452 Julie 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 Haleigh A. Hopkins, on behalf of Erica Jorgensen, of NBCUniversal, 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 August 25, 2022, Ms. Jorgensen requested “[a]ny and all reports of malfunctioning doors on MBTA operated trains from January 1st 2019 - Present.” The MBTA responded on August 26, 2022, citing Exemptions (a) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (f). Unsatisfied with the MBTA’s response, Attorney Hopkins 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 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. 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. SPR22/2452 Page 2 November 14, 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 MBTA’s August 26th Response In its August 26, 2022 response, the MBTA cites Exemption (a), 49 C.F.R. § 831.13(c), and Exemption (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its August 26th response, the MBTA cites 49 C.F.R. § 831.13(c), which provides in pertinent part: Release of information. Parties are prohibited from releasing information obtained during an investigation at any time prior to the NTSB’s [National Transportation Safety Board’s] public release of information unless the release is consistent with [specified] criteria. 49 C.F.R. § 831.13(c).

Julie Ciollo, Esq. SPR22/2452 Page 3 November 14, 2022 Please note that 49 C.F.R. § 831.13(a) provides also in pertinent part: (a) Applicability. This section [49 C.F.R. § 831.13] applies to: (1) Information related to the accident or incident; (2) Any information collected or compiled by the NTSB as part of its investigation, such as photographs, visual representations of factual data, physical evidence from the scene of the accident, interview statements, wreckage documentation, flight data and cockpit voice recorder information, and surveillance video; and (3) Any information regarding the status of an investigation, or activities conducted as part of the investigation. 49 C.F.R. § 831.13(a). Under Exemption (a) and the regulations cited above, the MBTA argues that “as a party to an ongoing NTSB investigation, the MBTA is prohibited from releasing any of the records or information sought in [Ms. Jorgensen’s] request.” Based on the MBTA’s response, it is unclear how Ms. Jorgensen’s request for “all reports of malfunctioning doors on MBTA operated trains” would constitute the type of records contemplated by 49 C.F.R. § 831.13. Specifically, the MBTA has not described the subject of any investigation, nor explained how the requested records may have been obtained during such an investigation. Further, it is unclear how the requested reports relate to the type of accident or incident described under 49 C.F.R. § 831.13(a). The MBTA must clarify these matters. 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

Julie Ciollo, Esq. SPR22/2452 Page 4 November 14, 2022 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Under Exemption (f), the MBTA argues the following: The records [Ms. Jorgensen is] seeking are being examined as part of an open and active investigation. Therefore, disclosing them prior to the investigation’s conclusion is likely to harm the ongoing investigation efforts by the MBTA and/or other investigative entities. In particular, disclosing the reports could hinder investigative efforts by revealing potential leads or interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation. Based on the MBTA’s response, it is unclear how the requested “reports of malfunctioning doors” would constitute “investigatory materials necessarily compiled out of the public view,” as required under Exemption (f). It is further unclear how the release of such records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” The MBTA must clarify these matters. Additionally, it is unclear from the MBTA’s response which specific records the MBTA intends to withhold. The MBTA must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (a) and (f). See 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”). Conclusion Accordingly, the MBTA is ordered to provide Ms. Jorgensen with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Erica Jorgensen Haleigh A. Hopkins, Esq.