Jenny Barron v. Massachusetts Bay Transportation Authority (SPR 20240514)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2024 SPR24/0514 Julie Ciollo, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Jenny Barron, of WCVB Channel 5 Boston, 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 January 26, 2024, Ms. Barron requested “the incident reports for the following:” [1.] An incident in December 2023 involving a contractor’s hand getting stuck in a train door. [2.] Two incidents in December 2023 involving people who had their bags stuck in the doors of trains. [3.] An incident on January 1, 2024 where a passenger’s leg became stuck in the doors of a Green Line train at the Medford/Tufts station. [4.] An incident on January 8, 2024 where an MBTA worker was involved in a near miss along the Green Line Extension. The MBTA responded on February 9 2024, denying the request, and claiming that the responsive records were withheld pursuant to Exemptions (d) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(d), (f). Unsatisfied with the MBTA’s response, Ms. Barron 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 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. SPR24/0514 Page 2 March 1, 2024 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 February 9th Response In its February 9, 2024 response, the MBTA states that it “is withholding these records at this time as it has determined they are exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26) (d) and (f).” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the MBTA argues the following: In this instance, the records requested would constitute intra-agency memoranda with respect to discussions internally relating to the internal investigation of the incidents and inter-agency memoranda with respect to reports or communications

Julie Ciollo, Esq. SPR24/0514 Page 3 March 1, 2024 sent between the MBTA and the Department of Public Utilities (“DPU”) or the Federal Transit Administration (“FTA” and together with the DPU, the “Oversite Authorities”). The MBTA is in an ongoing deliberative process with the Oversight Authorities with respect to the events described. Materials, deliverables, and inter-agency memoranda submitted to the Oversight Authorities and are subject to a robust review and verification process by each of the oversight authorities before they are accepted by the Oversight Authorities and each issues a closure letter. As a result, the records requested are subject to an ongoing deliberative process and therefore are exempt from disclosure. Based on the MBTA’s response, I find it is unclear how incident reports would constitute the type of “inter-agency or intra-agency memoranda or letters” required by Exemption (d). Particularly, it is unclear how the incident reports would not constitute “factual reports which are reasonably complete.” The MBTA must clarify these matters. Further, any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Consequently, the MBTA must clarify whether segregable portions of the records can be provided. 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.

Julie Ciollo, Esq. SPR24/0514 Page 4 March 1, 2024 Under Exemption (f), the MBTA argues the following: In this instance, the incidents identified in [the] request are the subject of open and active investigations by the MBTA for the purpose of reporting to its Oversight Authorities. The investigation remains open and incomplete until each of the Oversight Authorities issues a closure letter for the matter. The MBTA has not received a closure letter relating to these incidents. Disclosing the requested records, such as draft reports and memoranda, prior to the investigations’ conclusion is likely to harm the ongoing investigation efforts by leading 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 the requested reports until such time as the investigations have concluded. Based on the MBTA’s response, although portions of the responsive incident reports may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. For example, it is unclear how information such as the date and time of the incidents, or the name of the responding officers would prejudice an ongoing investigation or prosecution. The MBTA must explain whether the exempt information can be redacted so that segregable portions of the reports can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (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). Conclusion Accordingly, the MBTA is ordered to provide Ms. Barron 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 pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jenny Barron