Smith, Erin v. Massachusetts Bay Transportation Authority (SPR 20150227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 25, 2015 SPRlS/227 Ms. Susan M. Krupanski, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Krupanski: This office has received a petition from Erin Smith on behalf of the Boston Herald appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to her request for public records. Specifically, Ms. Smith requested to be able to inspect "bus daily dropped trips reports (including the breakdown of total trips dropped and reason why)" for the last year from specifically identified garages. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2). In a response dated March 30, 2015, the MBTA states the responsive records contain "specific information about employees and their reasons for being absent which is protected under privacy laws." The MBTA claimed certain information within the records would need to be redacted and offered to provide Ms. Smith with a cost estimate for the provision of records. As an alternative, the MBTA provided a spreadsheet of the monthly reports which are generated from the daily reports. However, Ms. Smith has informed this office that she remains interested in inspecting the daily reports she originally requested. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/p re

Ms. Susan Krupanski, Esq. SPR15/227 Page Two September 25, 20 15 In camera inspection of records In a letter dated August 10,2015 I ordered the MBTA to provide this office with umedacted copies of a representative sample of the responsive records for an in camera review. 950 C.M.R. 32.08(6). The MBTA provided this office with two (2) umedacted Daily Service Reports from the Albany Garage. I will return these records to your custody under separate cover. I would like to thank you for your cooperation in providing these documents. In a cover letter included along with the umedacted reports, you explain how the reports contain multiple columns, including those entitled "Operator Badge" which lists employee badge numbers and "Explanation: Why trip was lost" which specifically identifies the reason why the trip was lost. One of the reasons listed is an employee's usage of Family and Medical Leave pursuant to the federal Family and Medical Leave Act (FMLA). The reports also contain a "Legend" that assigns letters to reasons for dropped reports, including a letter for "Oper FMLA." You state that FMLA is "generally granted if an employee or a member of an employee's family has a 'serious health condition' and all medical information is treated in a confidential manner and is maintained in confidential [MBTA] medical files." You claim "ifthe daily reports are released without redactions, an employee with a serious health condition could be identified using the operator badge number." You state the badge number is displayed on every bus and worn on the operator's hat. In a conversation with a member of my staff, you indicated you plan to provide Ms. Smith with a fee estimate for the provision of the redacted reports. I have not received a copy of this fee estimate as of the date of this determination. Failure to claim an exemption to the Public Records Law While the MBTA may potentially redact references to FMLA within these reports pursuant to an exemption to the Public Records Law, the MBTA has not cited a particular exemption, nor has it explained how an exemption would justify redacting this information. Whereas it is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record, I find the MBTA has failed to meet its burden of explaining with specificity how the reports may be redacted. G. L. c. 66, § 10 (c ); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of proving with specificity the applicability of an exemption). Accordingly, whereas the MBTA has not overcome the presumption that the requested records are public, the MBTA is hereby ordered to allow Ms. Smith to inspect the requested records at a mutually agreeable time and place. If the MBTA maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Smith a written explanation, with specificity, how a particular exemption applies to each record. To

Ms. Susan Krupanski, Esq. SPR15/227 Page Three September 25, 2015 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). This estimate should include an explanation ofhow an exemption applies to justify redacting the reports. Once the fees are paid, you must provide the responsive records. Sha" n A. Williams ''--sUpervisor of Records cc: Ms. Erin Smith