Christopher Calnan v. Massachusetts Bay Transportation Authority (SPR 20242233)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 19, 2024 SPR24/2233 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 Christopher Calnan, of Cambridge Day, 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 26, 2023, Mr. Calnan requested “any and all lists of Transit Police employee exit interviews and the interviews themselves, whether redacted of sensitive personal information or not.” In correspondence with the MBTA on April 4, 2024, Mr. Calnan modified his request, agreeing that “[t]he specific date of the record be redacted, but the month and the year remain intact and visible for document verification purposes.” Previous Petition and Appeals This request was the subject of a previous petition from the MBTA and appeals from Mr. Calnan. See SPR23/1828 Determination of the Supervisor of Records (August 14, 2023); SPR23/3114 Determination of the Supervisor of Records (January 11, 2024); SPR24/0592 Determination of the Supervisor of Records (March 8, 2024); SPR24/0812 Determination of the Supervisor of Records (April 1, 2024); and SPR24/1409 Determination of the Supervisor of Records (May 23, 2024). In my May 23rd determination, I found that the MBTA had met its burden to redact one of the records in order to protect personal medical information, but had not met its burden to redact the other records under Exemption (c). Subsequently, the MBTA responded on June 3, 2024. Unsatisfied with the MBTA’s response, Mr. Calnan petitioned this office, and this appeal, SPR24/2233, was opened as a result. 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. SPR24/2233 Page 2 August 19, 2024 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 his appeal petition, Mr. Calnan contends the following: When the MBTA provided 24 exit interviews, it redacted the date indicating when each record was created. As such, Cambridge Day is prevented from identifying specific records and verifying whether they fall within the time period being addressed and whether the MBTA met its response requirement. The MBTA’s June 3rd Response In its June 3, 2024 response, the MBTA provides numerous records in redacted form, and explains the following to Mr. Calnan: [I]n the MBTA’s last response, we provided records consistent with your April 4th request (i.e. month and year of exit interview visible but date redacted) with two exceptions. After your appeal, the Supervisor of Records, in her May 23rd determination, agreed that the MBTA had a valid basis for redacting the month and date of one exit interview. As to the remaining exit interview, the Supervisor asked that the MBTA provide you with an additional response. In connection with the Supervisor’s determination, I am attaching the exit interview at issue, with month and date of the interview visible and date redacted. With this response, the MBTA’s provision of records consistent with your wishes is complete.

Julie A. Ciollo, Esq. SPR24/2233 Page 3 August 19, 2024 In its June 3rd response, the MBTA provided records as agreed in Mr. Calnan’s April 4, 2024 modified request. Please be advised that it is valid for the custodian of records to 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.” See G. L. c. 66, § 10(b)(vii). Given that the MBTA has provided Mr. Calnan with the records as agreed in the April 4th modified request, I find it is unclear what the basis of Mr. Calnan’s appeal is. Mr. Calnan is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Calnan wishes to submit an additional public records request to the MBTA, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Calnan