Timothy Nazzaro v. Massachusetts Bay Transportation Authority (SPR 20222480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2022 SPR22/2480 Julie 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 Timothy Nazzaro, 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 October 18, 2022, Mr. Nazzaro requested “any surveillance video [the MBTA] may possess of a fight that occurred just outside the Ashmont station on 10/16/22.” 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. 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 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. SPR22/2480 Page 2 November 16, 2022 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Nazzaro contends that: [The media] have already shown and aired video the victim’s mother took of the punch being thrown by the Transit Officer at the teenage girl. That video is now public knowledge/record, and shows the climax of the incident in question. What that video does not include is the lead up to what happened, which is what [Mr. Nazzaro is] requesting. Releasing the surveillance video from the station would provide necessary context to the officer’s actions and, if anything, provide the public with a more complete account of the incident that took place that day. The MBTA’s November 1st Response In its November 1, 2022 response, the MBTA indicates that it is withholding a responsive video pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). 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. Under Exemption (f), the MBTA argues the following: [T]he incident depicted in the requested video is the subject of an open and active

Julie Ciollo, Esq. SPR22/2480 Page 3 November 16, 2022 investigation. Disclosing the video 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 video at this time is likely to jeopardize the cooperation of witnesses, hinder investigative efforts by revealing potential leads, or lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation. The requested video shows details that are not public and must remain known only to investigative personnel. Investigative efforts, such as witness cooperation, would be harmed by premature release because, for example, viewing the depiction of the incident on the video could influence witness observations and prevent them from remaining candid. Based on the MBTA’s response, where the requested record is part of an ongoing investigation, and where the MBTA has explained how release of the video could prejudice the investigation, I find the MBTA has met its burden to withhold the video at this time, pursuant to Exemption (f). Please be advised that a change in the status of the investigation could impact the applicability of Exemption (f) to this record. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Timothy Nazzaro