Nicole M. Avitabile, Esq. v. Massachusetts Bay Transportation Authority (SPR 20252860)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2025 SPR25/2860 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 Nicole M. Avitabile, Esq., of Jeffrey Glassman Injury Lawyers, 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 August 27, 2025, Attorney Avitabile requested the “public records related to an escalator malfunctioning at Back Bay Station in Boston, Massachusetts on or about September 2021” as follows: [1] Emails sent or received by [an identified individual]; [2] Emails sent or received by [an identified individual]; [3] Emails sent or received from any MBTA employee; [4] Emails sent or received by the MBTA to any employee of Kone, Inc.; [5] Email[s] sent or received by the MBTA to any employee from Lerch Bates; [6] All video recordings showing the annual inspection of MBTA escalator #142 on 9/25/20; [7] All video recordings showing the maintenance of MBTA escalator #142 on 7/21/21 by Kone, Inc.; [8] All video recordings showing the annual inspection of MBTA escalator #142 on 7/30/21; [9] All video recordings showing the maintenance of MBTA escalator #142 on 8/5/21 by Kone, Inc.; [10] All video recordings showing the maintenance of MBTA escalator #142 on 9/7/21 by Kone, Inc.; [11] All video recordings taken of MBTA escalator [#]142 from 4:00 pm, to 8:00 pm on 9/26/21; [12] All video recordings showing the inspection of MBTA escalator [#]142 on 9/28/21, [i]ncluding the disassembly of its braking mechanism. [13] All video recordings, reports, or documents provided by Kone, Inc. to 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. SPR25/2860 Page 2 October 7, 2025 MBTA[,] relevant to the [i]nspection of MBTA escalator [#]142 on 9/28/21, [i]ncluding the disassembly of its braking mechanism. Previous Appeal This request was the subject of a previous appeal. See SPR25/2725 Determination of the Supervisor of Records (September 17, 2025). In my September 17th determination, I ordered the MBTA to provide Attorney Avitabile with a response to her request. The MBTA responded on September 29, 2025. Unsatisfied with the MBTA’s response, Attorney Avitabile petitioned this office and this appeal, SPR25/2860, was opened as a result. The MBTA’s September 29th Response In its September 29, 2025 response, the MBTA stated, “…the records that you requested are the subjects of disputes in active litigation. Your law firm, the Office of Jeffrey Glassman, represents the plaintiff in Gfeller v. MBTA and KONE, 2484CV00941. As litigation is ongoing, any request for the records identified here should be made through discovery.” Current Appeal In her appeal petition, Attorney Avitable stated, “[t]he MBTA’s denial fails to detail the specific basis for withholding the requested materials. The denial does not include a citation to one of the statutory or common law exemptions upon which the records custodian relies, nor does it explain with specificity why the exemption applies. They cannot simply say that the matter is under investigation.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the docket of the trial court and verified that civil litigation relating to the requested records is active and ongoing in Suffolk County Superior Court. See Gfeller, Simon vs. Kone, Inc. et al, Suffolk Superior Court, Docket No. 2484CV00941 (April 8, 2024). In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Julie A. Ciollo, Esq. SPR25/2860 Page 3 October 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Nicole M. Avitabile, Esq.