O'Malley, Sean v. Massachusetts Bay Transportation Authority (SPR 20260010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 15, 2026 SPR26/0010 Julie A. Ciollo, Esq. Records Access Officer 10 Park Plaza Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Sean D. O’Malley, Esq., of the Law Office of Sean D. O’Malley, PLLC, appealing the response of the Massachusetts Bay Transportation Authority (Authority/MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 12, 2025, Attorney O’Malley requested: [1] …copies of records related to the bus vehicle and bus driver who operated the MBTA bus on December 3, 2024, at approximately 4:45pm, on MBTA Bus Route 71 in Watertown, Massachusetts at/near Marshall Street. Specifically, I am seeking the following information/or the bus vehicle and driver on duty at that time: [2] Driver’s full name[;] [3] Driver’s license number[;] [4] Driver’s employee identification number[;] [5] Any incident reports for or video footage (inside or outside of the bus) related to the rear bus door closing on a passenger on the above date between 4:00pm- 5:30pm[;] [6] Bus number[;] [7] Bus license plate[;] [8] Bus vehicle identification number[.] The Authority responded on December 12, 2025 and December 25, 2025, and assigned reference number R001517-121225 to this request. Unsatisfied with the Authority’s responses, Attorney O’Malley petitioned this office and this appeal, SPR26/0010, 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. SPR26/0010 Page 2 January 15, 2026 Subsequent to the opening of this appeal, the Authority provided a further response on January 14, 2026. 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. 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 December 12th, December 24th, and January 14th Responses On December 12, 2025, the Authority acknowledged receipt of the request. On December 24, 2025, the Authority stated, “[i]n response to your request, the MBTA conducted a thorough and exhaustive search of all possible sources of responsive records. As a result of this search, it has been determined that the MBTA does not possess or control any responsive records, and no responsive records were ever in existence that have since been destroyed.” On January 14, 2026, the Authority stated: Upon inquiry, the relevant records custodian had advised that no report or log entry of an on board accident taking place on December 3, 2024 on Route 71 could be located. There were multiple buses in the area at the time specified in your request. With the information that you have provided, we are unable to isolate the bus that is the subject of your request. With regard to your request for video footage, the 30-day video retention period has passed and video is no longer available.

Julie A. Ciollo, Esq. SPR26/0010 Page 3 January 15, 2026 Current Appeal In his appeal petition, Attorney O’Malley contends: I appeal this denial for the following reasons:  Failure to conduct an adequate search  Wrongly determined records don’t exist My public records request sought records related to the bus vehicle and bus driver who operated the MBTA bus on December 3, 2024, at approximately 4:45pm, on MBTA Bus Route 71 in Watertown, Massachusetts, at/near Marshall Street. My client was a passenger injured while exiting that bus. Therefore, upon information and belief, the MBTA is in possession of the requested records as it had a bus operating on the above date, time and location. In his response, Attorney O’Malley states: I am informed by my client … that she telephonically contacted the MBTA in the days after the date of incident and received a return message from the MBTA. Therefore, upon information and belief, the MBTA would at a minimum have a record of her call and be able to determine the bus/driver at issue. … The MBTA’s assertion that it had multiple buses operating in this area is not a reasonable or good faith response. The MBTA must know which bus(es) were operating on Route 71 on the noted date, time and location… Records in Existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Authority’s January 14, 2026 response and a telephone call between a staff attorney of the Public Records Division and a representative of the Authority, the Authority confirmed that it does not possess records responsive to Item 1 of Attorney O’Malley’s request. Where the Authority has confirmed that it does not possess responsive records, I find that this portion of Attorney O’Malley’s appeal is resolved.

Julie A. Ciollo, Esq. SPR26/0010 Page 4 January 15, 2026 Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” In its further response to Attorney O’Malley on January 14, 2026, the Authority explained that, “[w]ith the information that you have provided, we are unable to isolate the bus that is the subject of your request.” In a telephone conversation between a staff attorney of the Public Records Division and a representative of the Authority, the Authority explained that there were five buses operating on this route and in this area at the identified time, and that without further information, it is impossible for the Authority to sufficiently narrow its search to identify the records sought by Attorney O’Malley. Conclusion Based on the forgoing, I find it is unclear which specific records Attorney O’Malley seeks. Attorney O’Malley may wish to modify or clarify his request to the Authority in order to provide the sufficient particularity needed in order to search the Authority’s records. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). Accordingly, I will now consider this administrative appeal closed. If Attorney O’Malley wishes to submit another public records request to the Authority as outlined above, and is unsatisfied with the response, he may again appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Sean D. O’Malley, Esq.