Michael Dlott v. Massachusetts Bay Transportation Authority (SPR 20242458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 10, 2024 SPR24/2458 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 of Michael Dlott, Esq. 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 August 26, 2024, Attorney Dlott requested, “[o]n my [sic] 18th 2022 at park street station [an identified individual] fell off the third rail and was electrocuted. We are requesting any videos of [the individual] walking to being near or falling off the platform onto the third rail.” The MBTA responded on August 28, 2024, denying the request in its entirety under Exemption (f) of the Public Records Law. Unsatisfied with the response, Attorney Dlott petitioned this office and this appeal, SPR24/2458, 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. See 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 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. SPR24/2458 Page 2 September 10, 2024 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, Attorney Dlott states that he is “the attorney for the personal representative . . . of the Estate of her brother . . . .” and contests “the MBTA’s decision not to disclose . . . the video and investigative reports for the death which occu[r]red at park street station over 2 years and three months ago.” Attorney Dlott explains, “[i]t seems unreasonable that an active investigation would take this long and the family is seeking . . . closure[.]” He further indicates that he seeks the responsive video “prior to filing a wrongful death claim.” Status of the requestor; reason for the request Attorney Dlott is advised, the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Dlott’s interest in obtaining the requested information shall have no bearing on the public nature of the record. MBTA’s August 28th response In its August 28, 2024 response, the MBTA denied the request in its entirety under Exemption (f) of the Public Records Law. 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

Julie A. Ciollo, Esq. SPR24/2458 Page 3 September 10, 2024 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 opined the following: Please be advised that your public records request seeks information that is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(f), which exempts certain investigatory materials. . . . According to information available to this office, the incident depicted in the requested video is the subject of an open and active investigation. Disclosing the video 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 video at this time is likely to jeopardize the cooperation of witnesses, hinder investigative efforts by revealing potential leads, or lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation. The requested video shows details that are not public and must remain known only to investigative personnel while witnesses have yet to be interviewed. Investigative efforts, such as witness cooperation, would be harmed by premature release because, for example, viewing the depiction of the incident on the video could influence witness observations and prevent them from remaining candid. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976) (one of the purposes of the investigatory exemption is to promote witness cooperation and candid observations). Therefore, the MBTA is claiming Exemption (f) to withhold video because disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Although the MBTA claims it has an open investigation regarding the requested video, it is unclear how the video in its entirety can be withheld under Exemption (f). Further, the MBTA’s August 28th response did not provide supporting information on how the investigative process is ongoing. The MBTA did not provide any supporting information to demonstrate how disclosure of any segregable portion of the video “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The MBTA must clarify these matters.

Julie A. Ciollo, Esq. SPR24/2458 Page 4 September 10, 2024 Conclusion Accordingly, the MBTA is ordered to provide Attorney Dlott 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. Attorney Dlott may appeal the substantive nature of the MBTA’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Dlott, Esq.