Laura Crimaldi v. Massachusetts Bay Transportation Authority (SPR 20232678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2023 SPR23/2678 Julie A. 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 Laura Crimaldi, of the Boston Globe, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 20, 2023, Ms. Crimaldi requested the following records: [1.] State reportable incident reports and/or memos for right of way incidents that occurred at about 11:40am on Sept. 18, 2023 on the Red Line between Harvard and Porter stations; [2.] State reportable incident reports and/or memos for right of way incidents that occurred on Sept. 11, 2023 on the Red Line between Harvard and Porter stations; [3.] Any/all records shared during meetings on Sept. 19, 2023 with General Manager . . ., top managers from Rail operations and Engineering & Maintenance, Maintenance of Way inspection teams and their supervisors about work procedures, their responsibilities, and what management can do to improve safety; [4.] Any/all records shared on Sept. 19, 2023 during safety briefings for Red Line train operators. The MBTA provided a response on October 13, 2023. Unsatisfied with the response, Ms. Crimaldi petitioned this office and this appeal, SPR23/2678, was opened as a result. 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. SPR23/2678 Page 2 November 17, 2023 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, § l0A(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. 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 October 13th response In its October 13, 2023 response, the MBTA cited Exemption (f) of the Public Records Law to withhold responsive records responsive to Items 1 and 2 of the request. In regards to Items 3 and 4, the MBTA stated, “please be advised that the MBTA does not possess any records that are responsive to your requests…” Current Appeal In her appeal, Ms. Crimaldi states, “the MBTA did not explain what information included in the Request was collected for investigatory purposes. Even had the MBTA satisfied this first step of the inquiry, the MBTA categorically fails the second step because its investigation is not a law enforcement investigation. See Globe Newspaper Co., 419 Mass. at 859. As the case law makes clear, this exception is not a general investigatory exception and must be related to law enforcement investigations… Moreover, even if there was a law enforcement purpose, the MBTA still fails to meet its burden as the MBTA makes no effort to explain how or why specific factual information in the Request would rise to the standard required under Exemption (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

Julie A. Ciollo, Esq. SPR23/2678 Page 3 November 17, 2023 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 289-290. Under Exemption (f), the MBTA states, “[a]ccording to information available to this office, the incidents that occurred on September 11th and 18th are the subject of open and active investigations by the MBTA or other investigative entities. It is the MBTA’s position that disclosing the requested records prior to the investigations’ conclusion is likely to harm the ongoing investigation efforts. Therefore, the MBTA is claiming Exemption (f) to withhold the requested reports until such time as the investigations have concluded.” Although the MBTA claims it has an open investigation regarding the requested records, it is unclear how the records in their entirety can be withheld under Exemption (f). It is additionally uncertain from the MBTA’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The MBTA did not provide any supporting information to demonstrate how disclosure 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 under Exemption (f). See 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). The MBTA must clarify these matters. Further, it is unclear what records the MBTA possesses that it withheld under Exemption (f). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the MBTA must identify the type of record(s) it has in its possession that it withheld under Exemption (f).

Julie A. Ciollo, Esq. SPR23/2678 Page 4 November 17, 2023 Conclusion Accordingly, the MBTA is ordered to provide Ms. Crimaldi with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, Manza Arthur Supervisor of Records cc: Laura Crimaldi