Michael Damiano v. Massachusetts Bay Transportation Authority (SPR 20242861)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2024 SPR24/2861 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Mike Damiano, on behalf of Shannon Larson, both of the Boston Globe, 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 October 2, 2024, Ms. Larson requested records “. . . pertain[ing] to the derailment of the Green Line train in Cambridge on Tuesday, Oct. 1, 2024, that happened around 4:48 p.m. I am requesting any available surveillance video, and any videos captured by the locomotive when the derailment happened. (Videos capturing the derailment of the Green Line train last night.)” Prior Appeal This request was the subject of a prior appeal. See SPR24/2767 Determination of the Supervisor of Records (October 17, 2023). In my October 17th determination, I learned that the MBTA provided a further response on October 7, 2024. Unsatisfied with the response, Mr. Damiano petitioned this office and this appeal, SPR24/2861, 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). 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. SPR24/2861 Page 2 October 31, 2024 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 October 18, 2024 appeal Mr. Damiano states, “[t]he Oct. 7 email does not constitute a response to our public records request. We request that the Supervisor of Records reopen our appeal of the MBTA’s Oct. 3 response to our public records request. Our objections to that response stand.” In the October 4, 2024 appeal, Ms. Larson states [1] Contrary to the MBTA’s response, the requested records are public and should not be withheld under exemptions d and f. [2] The response appears to contain large amounts of boilerplate language that is not relevant to records actually requested, which undermines the arguments for the claimed exemptions. [3] The response fails to “identify any records, categories of records or portions of records that the agency or municipality intends to withhold,” as the response must do under Massachusetts public records law. My request is narrow and specific. I am seeking video footage, in the possession of the MBTA, showing the widely reported Green Line derailment that occurred in Cambridge on Oct. 1, 2024.” The MBTA’s October 3rd and October 7th Responses In its October 3, 2024 response, the MBTA cites Exemptions (d) and (f) of the Public Records Law to withhold the requested records. 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

Julie Ciollo, Esq. SPR24/2861 Page 3 October 31, 2024 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). In its response, the MBTA states: 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 National Transportation Safety Board (“NTSB”), Department of Public Utilities (“DPU”) or the Federal Transit Administration (“FTA” and together with the NTSB or 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

Julie Ciollo, Esq. SPR24/2861 Page 4 October 31, 2024 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its response, the MBTA explains: 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.

Julie Ciollo, Esq. SPR24/2861 Page 5 October 31, 2024 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 its October 7, 2024 response, the MBTA states, “...this matter is still under investigation by the MBTA and outside investigatory authorities. Video is being reviewed as part of those investigations and cannot be released until they are complete.” Where the requested video footage pertains to an open and active investigation, I find that the MBTA may permissibly withhold the responsive record from disclosure under Exemption (f) at this time. Consequently, I decline to opine on the applicability of Exemption (d) to the requested record. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f).

Julie Ciollo, Esq. SPR24/2861 Page 6 October 31, 2024 Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Shannon Larson Mike Damiano