Jeff Raymond v. Massachusetts Bay Transportation Authority (SPR 20232313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 12, 2023 SPR23/2313 Christopher Smith, Esq. Senior Lead Counsel, Corporate & Ethics Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Smith: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 16, 2023, Mr. Raymond requested the following records: [1.] A copy of the document the MBTA police department sent to the POST Commission, likely sent between November 2021 and June of 2022, providing the information requested by the POST Commission for its ‘database listing complaints against police officers’ planned for May of 2022. . . [2.] Copies of any relevant responsive communications between a) the MBTA police department and/or MassDOT officials and b) the POST Commission in regard to the database planned for May of 2022 as detailed above and/or compliance with the reporting for said database between the dates of July 1, 2021 and December 31, 2022, broadly construed. . . [3.] Copies of any relevant responsive communications within or between a) MBTA police department and b) MassDOT in regard to this database and/or compliance with this mandate between the dates of July 1, 2021 and December 31, 2022, broadly construed. . . [4.] Information concerning ‘complaints against police officers’ issued in the calendar year 2022 and through March 31, 2023, preferably in the same format used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database. . . 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

Christopher Smith, Esq. SPR23/2313 Page 2 October 12, 2023 [5.] A copy of the document MBTA police department sent to the POST Commission as sent to the POST Commission, likely sent between December 1, 2022 and April 9, 2023, to comply with the ‘2023 POST Commission Disciplinary Records Resubmission.’... [6.] Copies of any relevant responsive communications within or between a) MBTA police department and b) your municipal administration in regard to this database and/or compliance with the ‘2023 POST Commission Disciplinary Records Resubmission’ described above. Prior Appeals The requested records were the subject of prior appeals. See SPR23/1292 Determination of the Supervisor of Records (June 28, 2023); SPR23/1754 Determination of the Supervisor of Records (August 14, 2023) and SPR23/2202 Determination of the Supervisor of Records (September 27, 2023). The MBTA responded on September 26, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2313, 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. 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 26th Response In its September 26, 2023 response, the MBTA cited Exemption (a) of the Public Records Law to redact certain criminal information.

Christopher Smith, Esq. SPR23/2313 Page 3 October 12, 2023 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 response, the MBTA cited the Criminal Offender Record Information (CORI) statute to redact certain records. The current definition of CORI is as follows: Criminal offender record information records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as

Christopher Smith, Esq. SPR23/2313 Page 4 October 12, 2023 an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its response, the MBTA states, “... the MBTA redacted information related to matters involving criminal matters and information that could be used to identify the individual concerned in such criminal matters. The Statutory Exemption provides that records are exempt from disclosure if they are ‘specifically or by necessary implication exempted from disclosure by statute’. In this case, the statute in question is M.G.L. c. 6, § 167 et seq. (CORI Act) and 802 CMR 2.00 promulgated by the Department of Criminal Justice Information Services (CORI Regs), governing the use of Criminal Offender Record Information (CORI) by criminal justice agencies.” The MBTA further asserted, ... if the MBTA were to assert the Statutory Exemption based on the CORI Act for some information and not redact the remaining identifying information, it would amount to the MBTA’s release of CORI information, because it is the ability to ultimately identify the person associated with the information that makes it CORI. Att’y Gen. v. Dist. Att’y for the Plymouth Dist., 484 Mass. 260, 268 (2019) (Where the inclusion of a docket number, even without a name, could be used to identify the individual with which CORI was related, amounting to the release of CORI). For example, MBTA redacted Internal Affairs investigation numbers. The MBTA does not assert exemption (c) to withhold this information, rather it is being withheld as CORI. Like all the information redacted by the MBTA, the investigation numbers could be used to identify the individual associated with the relevant criminal matters. Determining what constitutes identifying information regarding an individual must be considered from the viewpoint of the public as well as from the vantage of those who are familiar with the individual and their career. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). Despite the MBTA’s response, I find it has not met its burden to redact the requested records under the CORI Act as it operates through Exemption (a). Specifically, it is unclear how the Internal Affairs investigation numbers constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Conclusion Accordingly, the MBTA is ordered to provide Mr. Raymond 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

Christopher Smith, Esq. SPR23/2313 Page 5 October 12, 2023 pre@sec.state.ma.us. Mr. Raymond may appeal the substantive nature of the MBTA’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond