Laura Crimaldi v. Massachusetts Bay Transportation Authority (SPR 20232997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2023 SPR23/2997 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, on behalf of Sean Murphy, 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 November 3, 2023, Mr. Murphy requested “…copies of emails to and from [an identified individual] with the keywords ‘gauge’ or ‘gage’ for the periods March 1-April 30, 2023 and June 1-June 30, 2023.” The MBTA responded on November 20, 2023. Unsatisfied with the response, Ms. Crimaldi petitioned this office and this appeal, SPR23/2997, 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. 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. 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. SPR23/2997 Page 2 December 28, 2023 The MBTA’s November 20th response In its November 20, 2023 response, the MBTA requested that Ms. Crimaldi consider modifying her request. The MBTA stated: Due to the volume of documents that must be reviewed in order to provide you with a full response, I write to you to discuss how your request might be modified to provide for a more affordable and efficient response. See G.L. c. 66, §10(b)(vii) (a records access officer may suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). During our initial search, and in an attempt to comply with your request, we have determined that there are approximately 475 emails that are responsive to your request. An initial review showed that many emails contain safety-sensitive information that must be redacted prior to release. We expect this effort to take numerous hours and would require the issuance of a fee estimate. I encourage Ms. Crimaldi and the MBTA to further communicate in order to facilitate producing records efficiently and affordably. Ms. Crimaldi may wish to include factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The MBTA must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. Where Ms. Crimaldi’s request was originally submitted on November 3, 2023, and the MBTA has not provided responsive records, I find that the MBTA has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the MBTA must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the MBTA must provide responsive records on a rolling basis.

Julie A. Ciollo, Esq. SPR23/2997 Page 3 December 28, 2023 Conclusion Accordingly, the MBTA is ordered to provide a response to Ms. Crimaldi, in a manner consistent with the Public Records Law, its Regulations and this order 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. Ms. Crimaldi 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: Laura Crimaldi