Ibarguen, Esq., Diego v. Massachusetts Bay Transportation Authority (SPR 20140524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 17, 2014 SPR14/524 Ms. Susan M. Krupanski, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Krupanski: I have received the petition of Diego Ibarguen appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records made by his client Kristen Setera, of WCVB-TV in Boston. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Setera requested copies of "records reflecting the total number of vacation and sick days" of a specifically identified MBTA Police Officer. Ms. Setera also requested copies of any records reflecting days for which the specific officer called in sick but was not paid. Finally, Ms. Setera also_requested copies of any disciplinary records for that same officer. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In an email dated October 9, 2014 you stated that subsequent to the intervention of this office you would provide records disclosing sick time information for the specifically identified officer. Accordingly, this portion of Attorney lbarguen's appeal is closed. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Susan M. Krupanski, Esq. SPR14/524 Page Two October 17,2014 Exemption (c) You maintain that any disciplinary records responsive to Ms. Setera' s request are exempt under the first clause of Exemption (c) of the Public Records Law. Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). I d. In your October 9th email you explain that the withheld records are not internal affairs records, as that is not what was requested. Internal affairs records are public records, subject to mandatory disclosure. See Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). I find that any disciplinary records responsive to Ms. Setera's request that do not fall under the category of records outlined in Worcester may be withheld as personnel records pursuant to the first clause of Exemption (c) of the Public Records Law. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration fi edmore than thirty (30) days after the date of this letter will not be considered. ~s, A. Williams Supervisor of Records cc: Mr. Diego Ibarguen, Esq.