Brandon Stokes v. Massachusetts Bay Transportation Authority (SPR 20252738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 1, 2025 SPR25/2738 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer 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 September 16, 2025, Mr. Stokes requested, “. . . surveillance video from interior and exterior cameras on the MBTA bus involved in the below incident: Around 1pm on 9/8/25, a woman pushed an elderly woman off an MBTA bus at MLK/Warren Street.” The MBTA provided a response on September 16, 2025. Unsatisfied with the MBTA’s response, Mr. Stokes petitioned this office and SPR25/2738, was opened as a result. Subsequently, the MBTA provided a supplemental response on September 30, 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 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. SPR25/2738 Page 2 October 1, 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. The MBTA’s September 16th and September 30th Responses In its September 16, 2025 response, the MBTA cites Exemption (f) of the Public Records Law to withhold the requested record. In its September 30, 2025 response, the MBTA provided additional information to withhold the requested record. 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 289-290. 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 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.

Julie A. Ciollo, Esq. SPR25/2738 Page 3 October 1, 2025 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 September 16th response, the MBTA asserted, “[a]ccording 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 its September 30th response, the MBTA further stated, “. . . the MBTA withheld the requested video on the basis of an ongoing investigation by the MBTA and other investigative entities. As of today, those investigations are ongoing, both within the MBTA and the Suffolk County District Attorney’s Office. The requested video shows details that are not public and must remain known only to investigative personnel while witnesses have yet to be interviewed. Investigative efforts, such as witness cooperation, would be harmed by premature release because, for example, viewing the depiction of the incident on the video could influence witness observations and prevent them from remaining candid. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976) (one of the purposes of the investigatory exemption is to promote witness cooperation and candid observations). Therefore, the MBTA is claiming Exemption (f) to withhold video because disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Where the video pertains to an ongoing investigation and its disclosure “. . . is likely to jeopardize the cooperation of witnesses [and] hinder investigative efforts,” I find the MBTA may permissibly withhold the responsive record from disclosure under Exemption (f) at this time.

Julie A. Ciollo, Esq. SPR25/2738 Page 4 October 1, 2025 Please be aware that the change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Brandon Stokes