Jenny Barron v. Massachusetts Bay Transportation Authority (SPR 20241134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1134; SPR24/1135; SPR24/1136 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petitions of Jenny Barron, of WCVB, appealing the responses of the Massachusetts Bay Transportation Authority (MBTA) to three requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2024, March 30, 2024, and April 1, 2024, respectively, Ms. Barron requested the following records: SPR24/1134 ... the incident report on a Green Line derailment near Kenmore station on March 9, 2024 at approximately 8:40 am. SPR24/1135 ... the incident report on a Green Line train that proceeded through a signal, causing damage to the switch, near Union Square Station at approximately 1 pm on March 29, 2024. SPR24/1136 ... the incident report for an incident involving a Green Line train proceeding through a signal approaching Union Station at approximately 3 pm on Monday, April 1, 2024. The MBTA provided a response on April 11, 2024 for SPR24/1134 and SPR24/1135, and on April 12, 2024, provided a response for SPR24/1136. Unsatisfied with the MBTA’s 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. SPR24/1134; SPR24/1135; SPR24/1136 Page 2 April 30, 2024 responses, Ms. Barron petitioned this office and these appeals, SPR24/1134, SPR24/1135, and SPR24/1136, were 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. The MBTA’s April 11t h and April 12th Responses In its April 11, 2024 and April 12, 2024 responses, the MBTA cites Exemptions (d) and (f) of the Public Records Law to withhold the requested records in their entirety. 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 stated:

Julie A. Ciollo, Esq. SPR24/1134; SPR24/1135; SPR24/1136 Page 3 April 30, 2024 In this instance, the records requested would constitute intra-agency memoranda with respect to discussions internally relating to the internal investigation of the subject incident and interagency memoranda with respect to reports or communications sent between the MBTA and the Department of Public Utilities (“DPU”) or the Federal Transit Administration (“FTA”) and together with the DPU, the “Oversight Authorities”). The MBTA is in an ongoing deliberative process with the Oversight Authorities with respect to the event described in your request. Materials, deliverables, and inter-agency memoranda submitted to the Oversight Authorities 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. These materials are not “reasonably complete factual reports” because of the deliberative nature of the interaction between the Oversight Authorities and the MBTA. If the Oversight Authorities seek additional information or clarity, the MBTA may need to conduct additional investigation or compile additional information, changing the information contained in the requested records and consequently altering resulting conclusions or remedies. As a result, the records requested are subject to an ongoing deliberative process and therefore are exempt from disclosure. 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 289-290.

Julie A. Ciollo, Esq. SPR24/1134; SPR24/1135; SPR24/1136 Page 4 April 30, 2024 In its responses, the MBTA asserted the following: In this instance, the incident identified in your request is the subject of an open and active investigation by the MBTA for the purpose of preventing similar incidents and reporting to its Oversight Authorities. The investigation remains open and incomplete until each of the Oversight Authorities issues its respective closure letter for the matter. The MBTA has not received a closure letter relating to this incident. The requested records consist of information contained through internal investigation and would include voluntary statements from witnesses and interim conclusions. Releasing these materials before they are complete may also reveal investigative techniques of the MBTA and its Oversight Authorities. Disclosing the requested records prior to the investigations’ conclusion is likely to harm the ongoing or future investigation efforts. Release of these reports may lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation. These interim conclusions may include which personnel or infrastructure may have been involved or responsible for the incident described. Releasing the records prior to completion of the investigations could prejudice the outcome by solidifying incorrection or incomplete conclusions. Release of reports at this time could also have a chilling effect on the candor of personnel who are involved in or witness future incidents. If MBTA personnel know their remarks would be for public consumption, they may be more inclined to obfuscate during future investigations. In addition, if the records were released prior to finalization, the differences between the current, incomplete drafts and the final records could reveal investigative techniques of the MBTA or its Oversight Authorities. This could help individuals in the future avoid accountability if involved in an incident if they know how to work around the particular investigative technique deployed. This would make it difficult for the MBTA and its Oversight Authorities to ascertain the cause of future incidents and identify an appropriate remedy to protect MBTA personnel and the public. The requested records consist almost entirely of interim conclusions and information gathered through witness statements. Further, the ability to compare the interim information to the final records makes the entirety of the requested records useful in revealing investigative techniques. Therefore, there is no segregable portion of the records to produce at this time and the MBTA is claiming Exemption (f) to withhold the requested records in their entirety until such time as the investigations have concluded. In a telephone conversation between an attorney of the Public Records Division and a

Julie A. Ciollo, Esq. SPR24/1134; SPR24/1135; SPR24/1136 Page 5 April 30, 2024 representative of the MBTA, the MBTA confirmed that the investigation is still ongoing. Where the requested records pertain to an ongoing investigation, I find the MBTA may permissibly withhold the responsive records from disclosure pursuant to Exemption (f) at this time. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f). Consequently, I decline to opine on the applicability of Exemption (d) of the Public Records Law. Conclusion Accordingly, I will consider these administrative appeals closed. Sincerely, Manza Arthur Supervisor of Records cc: Jenny Barron