Laura Crimaldi v. Massachusetts Bay Transportation Authority (SPR 20233129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 12, 2024 SPR23/3129 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Laura Crimaldi, on behalf Taylor Dolven, both of the Boston Globe, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to the request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 29, 2023, Ms. Dolven requested the following records: [1.] Copies of geometry testing results, including track gauge, before trains went into service on the Union Square branch of the Green Line extension [and] ... any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. [2.] Copies of geometry testing results, including track gauge, before trains went into service on the Medford/Tufts branch of the Green Line extension [and] ... any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. [3.] Copies of all geometry testing results, including track gauge, since passenger service began on the Union Square branch and the Medford/Tufts branch [and] ... any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. [4.] Certificates of compliance for all track components on the Green Line extension. [5.] All emails to or from [an identified person] with the keyword ‘GLX’ from Oct. 1, 2022 through Dec. 15, 2022. 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. SPR23/3129 Page 2 January 12, 2024 [6.] All change orders to the Green Line extension contract with GLX Constructors. Previous Appeals This request was the subject of previous appeals. See SPR23/2540 Determination of the Supervisor of Records (November 7, 2023) and SPR23/2669 Determination of the Supervisor of Records (November 20, 2023). In my November 20th determination, I ordered the MBTA to provide Ms. Crimaldi with a further response to her request. Subsequently, the MBTA responded on December 22, 2023, citing Exemption (n) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(n). Unsatisfied with the MBTA’s response, Ms. Crimaldi 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 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. Current Appeal In her appeal petition, Ms. Crimaldi contends the following: The Globe respectfully submits that the MBTA hasn’t met its burden under Exemption (n). The track standards for the MBTA system, and the Green Line in particular, are not secret. The standards are publicly available on the MBTA’s website. The standards were retrieved by the Globe on multiple dates, including Dec. 28, 2023, and may be located at [a specified] web address. . . .

Julie Ciollo, Esq. SPR23/3129 Page 3 January 12, 2024 This page includes a link to a MBTA document entitled, “GREEN LINE – LIGHT RAIL TRANSIT TRACK MAINTENANCE AND SAFETY STANDARDS.” The Globe is including a copy of this document for the Supervisor. This document lists MBTA standards for RED, YELLOW, and GREEN conditions for metrics including, not limited to, track gauge, deviation from uniform track surface, and rail end mismatch maintenance limits. In October of this year, the Globe and the MBTA exchanged emails about the track gauge standards for the Green Line extension. In an email on Oct. 4, 2023, the MBTA identified the minimum track gauge for the Green Line, as 56 1/8 inches. In the same email exchange, the MBTA informed the Globe that the version of the MBTA’s TRACK MAINTENANCE AND SAFETY STANDARDS on its website at that time was outdated and that the agency planned to publish its most recent version. The MBTA’s December 22nd Response In its December 22, 2023 response, the MBTA cites Exemption (n) of the Public Records Law for withholding “all geometry testing results, including track gauge, on the Union Square branch and the Medford/Tufts branch of the Green Line Extension.” See G. L. c. 4, § 7(26)(n). 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.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017).

Julie Ciollo, Esq. SPR23/3129 Page 4 January 12, 2024 The second prong of Exemption (n) examines “the factual and contextual support for the 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. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its December 22nd response, the MBTA argues the following under Exemption (n): The characteristics of the geometry car test results [Ms. Crimaldi is] seeking meet the first prong of Exemption (n).... The results of the geometry car tests reveal the exact track standards for the MBTA system. These standards are non-public and require non-disclosure certifications before any MBTA employee can view them. Disclosure is strictly limited to a select group of personnel within the MBTA. Knowing these values allows someone with malicious intent to alter the system into a RED condition, which is the most severe level of track defect, without MBTA’s knowledge. Doing so would bring rail travel to a halt and endanger occupants of in-use revenue vehicles. In this way, the geometry car test results qualify as “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.” See, Exemption (n). The above facts also demonstrate that the MBTA has met the second prong of Exemption (n), which examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The danger posed by public release of the geometry car test results provide “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 Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (n) claim made by the MBTA to withhold responsive records, the MBTA must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the MBTA’s custody and issue an opinion on the public or exempt nature of the records.

Julie Ciollo, Esq. SPR23/3129 Page 5 January 12, 2024 The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the MBTA is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Laura Crimaldi