Tim Jensen v. Massachusetts Bay Transportation Authority (SPR 20242943)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 12, 2024 SPR24/2943 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 Tim Jensen 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 September 26, 2024, Mr. Jensen requested the following: [R]ecords related to the incident on Tuesday, May 21, 2024, at approximately 6:00 AM involving a westbound train on the Green Line. This incident involved a misaligned hand throw switch, which resulted in damaged components at Charles Street storage near Arlington Station. Specifically, I am requesting the following: Names and roles of all individuals involved in the incident, including train operators, maintenance personnel, and other relevant MBTA employees. Photographs or images taken of the damage to the train or other components as a result of the incident. Reports regarding the incident, including any internal or external investigations and evaluations conducted by the MBTA or other authorities. Statements from any MBTA personnel or witnesses regarding the incident. Communications (including emails, text messages, or other forms of communication) involving MBTA employees or officials that reference or pertain to the incident. Any other records or documents relating to this specific incident such as discipline or discharges. The MBTA responded on September 27, 2024. Unsatisfied with the MBTA’s response, Mr. Jensen petitioned this office, and this appeal, SPR24/2943, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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. SPR24/2943 Page 2 November 12, 2024 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. The MBTA’s September 27th Response In its September 27, 2024 response, the MBTA cites Exemptions (d) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(d), (f). 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). In its September 27th response, under Exemption (d), the MBTA argues the following: In this instance, the records requested would constitute intra-agency memoranda

Julie A. Ciollo, Esq. SPR24/2943 Page 3 November 12, 2024 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. Based on the MBTA’s response, I find it is unclear what deliberative process the responsive records relate to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the records would taint any ongoing deliberative process. The MBTA must clarify these matters. 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

Julie A. Ciollo, Esq. SPR24/2943 Page 4 November 12, 2024 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. Witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, under Exemption (f), the MBTA argues 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 incorrect 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.

Julie A. Ciollo, Esq. SPR24/2943 Page 5 November 12, 2024 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. Although portions of the responsive records may fall under Exemption (f), it is uncertain how the records can be withheld in their entirety. Specifically, it is unclear why the records cannot be redacted to protect the identities of voluntary witnesses, so that segregable portions can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The MBTA must clarify this. Conclusion Accordingly, the MBTA is ordered to provide Mr. Jensen 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. Sincerely, Manza Arthur Supervisor of Records cc: Tim Jensen