Brandon Stokes v. Massachusetts Bay Transportation Authority (SPR 20251820)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2025 SPR25/1820 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 Brandon Stokes, of 7News WHDH Boston, 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 June 23, 2025, Mr. Stokes requested “MBTA surveillance video related to a Green Line train making contact with barrier fencing at Park St around 5:20pm on Monday 6/23/25. It appears the train hit the fencing and a train door was ripped off the train in the process.” The MBTA responded on June 23, and June 24, 2025, and assigned reference number R000773-062325 to this request. Unsatisfied with the MBTA’s response, Mr. Stokes petitioned this office, and this appeal, SPR25/1820, was opened as a result. Subsequent to the opening of this appeal, in an email to this office on June 26, 2025, the MBTA provided a further response. 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 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. SPR25/1820 Page 2 July 9, 2025 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. Stokes contends that “while there may be an investigation into who’s responsible for opening the gate, the record cannot be withheld in its entirety. It’s unclear why the MBTA cannot release the portion of the surveillance video that shows the train striking the already-open gate.” The MBTA’s Responses In its June 24, 2025 response, the MBTA cites Exemption (f) of the Public Records Law for withholding responsive video footage. See G. L. c. 4, § 7(26)(f). In its June 23, and June 26, 2025 responses, the MBTA provides additional details regarding its claims under Exemption (f). 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 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. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure

Julie Ciollo Esq. SPR25/1820 Page 3 July 9, 2025 of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. 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 June 23rd response, the MBTA provided the following explanation: Around 4:45 PM, a Green Line train was looping from the eastbound track to the westbound track at Park Street when it made contact with an ajar gate in the fence separating the platforms. The train was not carrying passengers, and no injuries were reported. While the incident is under investigation, it appears two individuals trespassing in the track area crossed from the westbound to the eastbound platform and didn’t close the gate behind them -- [the requestor] can contact TPD for more information. TPD is investigating. At the time, there was minimal impact to service. The same train, once able to move around 6 PM, also experienced a broken pantograph, which connects the train to the overhead electric wire that powers the train. At this time, the cause of the pantograph issue is also under investigation. In its June 24th response, under Exemption (f), the MBTA argues the following:

Julie Ciollo Esq. SPR25/1820 Page 4 July 9, 2025 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. Specifically, it applies to materials necessarily compiled out of the public view by investigatory officials that, if disclosed, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” 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. In an email to this office on June 26, 2025, the MBTA “confirmed this . . . incident remains under investigation by MBTA Safety, Transit Police and the DPU. Video is being reviewed by investigative personnel and cannot be publicly released at this time without impeding the investigations.” In this case, to the extent that the MBTA claims that disclosure would reveal the course of its ongoing investigation and chill the cooperation of witnesses, the MBTA may properly claim Exemption (f) of the Public Records Law to withhold the requested video footage. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Stokes is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Brandon Stokes