Warren Ryder v. Massachusetts Bay Transportation Authority (SPR 20242036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 30, 2024 SPR24/2036 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 petition submitted by Warren Ryder 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 July 5, 2024, Mr. Ryder requested “... any reports/logs related to th[e] case No.: R000679-070524 for 07/01/24 at approx[imately] 11:50PM - North Station. Our Keolis staff reported a trespasser in the train tampering with controls and stole personal items. TPD Responded and it is reported an arrest was made.” The MBTA responded on July 16, 2024. Unsatisfied with the MBTA’s response, Mr. Ryder petitioned this office and this appeal, SPR24/2036, 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. SPR24/2036 Page 2 July 30, 2024 The MBTA’s July 16th response In its July 16, 2024 response, the MBTA claimed Exemption (f) of the Public Records Law to withhold the requested records in their entirety. 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. In its response, the MBTA stated that “[a]ccording to information available to this office, this incident is the subject of an open and active investigation. It is the MBTA’s position that disclosing the requested record prior to the investigation’s conclusion is likely to harm the ongoing investigation efforts by the MBTA and/or other investigative entities. In particular, disclosing the incident report HERE at this time is likely to jeopardize the cooperation of witnesses, hinder investigative efforts by revealing potential leads, lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation, or harm a potential prosecution. Therefore, the MBTA is claiming Exemption (f) to withhold the report because disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Where the records pertain to an open and active investigation, I find that the MBTA may permissibly withhold the responsive records from disclosure under Exemption (f) at this time. Please note that a change in the status of the investigation could impact the applicability of Exemption (f).

Julie A. Ciollo, Esq. SPR24/2036 Page 3 July 30, 2024 Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Warren Ryder