Shannon Larson v. Massachusetts Bay Transportation Authority (SPR 20243188)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3188 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Shannon Larson, 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 17, 2024, Ms. Larson requested the following: [1.] all records associated with incidents of overspeeding by MBTA operators from January 1, 2020 to Oct. 3, 2024 [2.] all records associated with citations for overspeeding by MBTA operators from January 1, 2020 to Oct. 3, 2024 [3.] all records related to incidents of overspeeding by MBTA operators from January 1, 2020 to Oct. 3, 2024 [4.] all records related to citations for overspeeding by MBTA operators from January 1, 2020 to Oct. 3, 2024 [5.] all records tracking incidents of overspeeding by MBTA operators from January 1, 2020 to Oct. 3, 2024 [6.] all records tracking citations for overspeeding by MBTA operators from January 1, 2020 to Oct. 3, 2024 On October 18, 2024, Ms. Larson expanded the timeline of the request “to records from Oct. 4, 2019 to Oct. 3, 2024.” The MBTA responded on October 21, 2024 and November 4, 2024. Unsatisfied with MBTA’s responses, Ms. Larson petitioned this office and this appeal, SPR24/3188, 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. SPR24/3188 Page 2 December 5, 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. The MBTA’s October 21st and November 4th Responses In its October 21, 2024 response, the MBTA stated, “[the MBTA] will look into this modified request and get back to you shortly.” In its November 4, 2024 response, the MBTA stated, “I am awaiting information from the custodians as to whether they possess any records that aggregate incidents of overspeeding and what information is available. I will be in touch on this soon.” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Larson submitted her modified request on October 18, 2024, and the MBTA has not provided the responsive records, nor cited an exemption for withholding records, I find that the MBTA has not met its burden in responding to the request in accordance with G. L c. 66,

Julie A. Ciollo, Esq. SPR24/3188 Page 3 December 5, 2024 § 10(b)(vi). Consequently, the MBTA must provide an estimated date as to when it intends to complete the search and provide any responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the MBTA must provide responsive records on a rolling basis. Conclusion Accordingly, the MBTA is ordered to provide Ms. Larson 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. Ms. Larson may appeal the substantive nature of the MBTA’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Shannon Larson