Jack Taylor v. Massachusetts Bay Transportation Authority (SPR 20232241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2023 SPR23/2241 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Jack Taylor appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 4, 2023 and August 6, 2023, Mr. Taylor made the following requests: [1] ... video recording footage from a green line type 9 vehicle. [2] ... footage of a green line train camera traveling from end to end, and this vehicle ran end to end at this time. Prior Appeals The requested records were the subject of prior appeals. See SPR23/2206; SPR23/2209 Determination of the Supervisor of Records (September 21, 2023). In my September 21st determination, I learned that the MBTA provided a response to Mr. Taylor on September 20, 2023 and closed the appeal. In the MBTA’s September 20th response, it indicated that it was withholding responsive records pursuant to Exemption (n) of the Public Records Law. Unsatisfied with the MBTA’s response, Mr. Taylor petitioned this office and this appeal, SPR23/2241, 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 town of the 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. SPR23/2241 Page 2 October 4, 2023 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. 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 September 20th and September 21st responses In its September 20, 2023 response, the MBTA indicated that it withheld responsive records under Exemption (n). In a further email to this Office on September 21, 2023, the MBTA indicated that it no longer possessed the full requested videos for the requests. In his appeal, Mr. Taylor claims that the MBTA did not meet its burden to withhold the responsive records in their entirety. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the

Julie A. Ciollo, Esq. SPR23/2241 Page 3 October 4, 2023 proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. In its September 20, 2023 response, the MBTA stated the following: Please be advised that your requests seek information that is exempt from disclosure under Massachusetts General Laws ch. 4, sec. 7, clause 26 (n), which is known as the Security Sensitive Exemption. . . . Specifically, we are unable to release the requested video from the front camera of Green Line vehicles that are so equipped. The reason for this denial is that the video would show the precise locations of any vulnerabilities and sensitive infrastructure, such as access points known only to certain MBTA personnel and switches that could be used to interfere with the normal travel of vehicle traffic. In the hands of a bad actor, the information contained within the video could be used to maximize damage and gravely affect the safety and security of MBTA customers, employees and infrastructure. Based on the MBTA’s response, I find it has not met its burden to withhold the requested records pursuant to Exemption (n). It is unclear how the requested information resembles the records listed in the statute. See id. at 289. Where the record bears little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290- 91. Also, although the MBTA indicates that the requested information is one a bad actor would find useful, I find the MBTA has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the record is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Further, it is unclear why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See 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 MBTA must clarify these matters. Conclusion Accordingly, the MBTA is ordered to provide Mr. Taylor 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 the response to this office at pre@sec.state.ma.us.

Julie A. Ciollo, Esq. SPR23/2241 Page 4 October 4, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jack Taylor