Joe Sciacca v. Massachusetts Bay Transportation Authority (SPR 20232283)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2283; SPR23/2291 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 Joe Sciacca, of 7News WHDH-TV Boston, appealing the responses of the Massachusetts Bay Transportation Authority (MBTA) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 14, 2023, Mr. Sciacca requested the following: [1.] Any video showing the 8/10/23 incident in which a Red Line train was reported heading toward a worker in the track area near North Quincy station - Any audio pertaining to this incident including radio traffic and 911 calls - Any incident report documenting this incident [2.] Any video showing the 9/6/23 incident in which a Red Line train was reported heading toward workers in the track vicinity at 4:14 a.m. - Any audio pertaining to this incident including radio traffic and 911 calls - Any incident report documenting this incident The MBTA responded to both requests on September 21, 2023, citing Exemption (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(f). Unsatisfied with the MBTA’s response, Mr. Sciacca 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 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. SPR23/2283; SPR23/2291 Page 2 October 10, 2023 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 custodian must provide the responsive records. The MBTA’s September 21st Response In its September 21, 2023 response, the MBTA cites Exemption (f) of the Public Records Law for withholding responsive records. 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. In its September 21st response, for each request, under Exemption (f), the MBTA argues the following:

Julie Ciollo, Esq. SPR23/2283; SPR23/2291 Page 3 October 10, 2023 According to information available to this office, this incident is the subject of an open and active investigation. It is the MBTA’s position that disclosing the requested reports 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 reports 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. Therefore, the MBTA is claiming Exemption (f) to withhold responsive reports because disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Based on the MBTA’s response, it is unclear how the responsive records constitute investigatory materials. It is additionally not certain how the records pertain to an ongoing investigation. Further, the MBTA did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The MBTA must clarify these matters. Additionally, the MBTA must explain whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 Exemption (f). See G. L. c. 66, § 10(b)(iv) (a 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 Mr. Sciacca with a response to his requests, 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.

Julie Ciollo, Esq. SPR23/2283; SPR23/2291 Page 4 October 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joe Sciacca