Kevin Davis v. Massachusetts Bay Transportation Authority (SPR 20252631)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 17, 2025 SPR25/2631 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Kevin Davis appealing the response of the Massachusetts Bay Transportation Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 20, 2025, Mr. Davis sought the following: I respectfully request access to the following records in the custody of the MBTA Transit Police and its Superintendent, related to the alleged 911 call tied to the April 11, 2021 incident: [1] Audio Recordings: Any and all electronic copies of the alleged 911 call audio in the possession, custody, or control of [the] Superintendent or the MBTA Transit Police, regardless of storage location or format[;] [2] Chain of Custody Determination: Any records documenting when, how, and from whom [the] Superintendent or MBTA Transit Police received the above audio, including transfer logs, intake forms, memoranda, or records of communication[;] [3] Digital Project/Session Files: Any associated digital audio workstation project/session files, including but not limited to Adobe Audition session files, linked to the audio in [the] Superintendent’s possession[;] [4] Playback Software/Wrapper Files: Any NICE Inform wrapper files, proprietary playback utilities, or other system files ordinarily packaged with 911 audio exports that accompanied or were associated with this audio file. The Authority responded on August 20, 2025 assigning the request the reference number R001026-082025. Unsatisfied with the response, Mr. Davis petitioned this office and this appeal, SPR25/2631, 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. SPR25/2631 Page 2 September 17, 2025 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. If there are any fees associated with a response a written, good faith estimate must be provided. See 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 Authority’s August 20th Response In its August 20, 2025 response, the Authority stated, “[b]ased on your initial request, we are unable to determine what, if any, responsive records might exist. Pursuant to 950 CMR 32.06(1)(b), ‘requests for public records shall include a reasonable description of the requested record to the records access officer so that he or she can identify and locate it promptly.’ ‘A requestor does not need absolute precision, but an agency is entitled to more than a general category of what may be thousands of documents.’ See The David Project, Inc. v. Boston Redevelopment Authority, 22 Mass.L.Rep. 361 (2007). Please provide more information relating to the April 11, 2021 incident that is the subject of your request.” In an August 20, 2025, communication to the Authority, Mr. Davis clarified his request, stating, “the request is . . . for records directly connected to the April 11, 2021 incident involving [an identified] former MBTA Transit Police Officer.” Current Appeal In his September 5, 2025 petition to this office, Mr. Davis stated, “[a]s of September 5, 2025, no response of any kind has been received.” Timeframe for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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

Julie A. Ciollo, Esq. SPR25/2631 Page 3 September 17, 2025 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 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 Mr. Davis provided clarification for his request on August 20, 2025, and the Authority has not provided responsive records, I find the Authority has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Authority must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Authority must provide responsive records on a rolling basis. Conclusion Accordingly, the Authority is ordered to provide Mr. Davis 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. Mr. Davis may appeal the substantive nature of the Authority’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Davis