Wilson G. Dobson, P.E. v. Massachusetts Bay Transportation Authority - Office of the General Counsel (SPR 20160250)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 22, 2016 SPR16/250 Ms. Susan Krupanski, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Law Department Ten Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Krupanski: I have received the petition of Ben Dobson, Assistant News Director of New England Cable News (NECN) appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Dobson requested copies of employee disciplinary interview slips from January 2, 2015 through June 30, 2015. The MBTA denied Mr. Dobson's request pursuant to G. L. c. 4, § 7(26) (c), personnel clause. Mr. Dobson appealed. 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). Exemption (c) In your March 8, 2016 response, you informed Mr. Dobson that the MBTA is withholding the requested employee disciplinary interview slips in their entirety as personnel information regarding disciplinary investigations and potential disciplinary action that may be taken against individual MBTA employees. Further, MBTA advised Mr. Dobson that the 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. SPR16/250 Page 2 April 22, 20 16 requested interview slips are part of the disciplinary review process and are read to employees listing what it is they are believed to have done which may lead to disciplinary action against them. It is my understanding that the interview slip is placed in the employee's file, after signing by the employee, management representatives and union representative, if applicable. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c) 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). Id. While MBT A has claimed Exemption (c) to withhold all the interview slips requested, Mr. Dobson provided this office with a copy of an interview slip of a former MBTA employee who was involved in a runaway Red Line train incident. Therefore, Mr. Dobson questions why the MBTA released that particular interview slip, but is withholding all the interview slips between January 1, 2015 and June 30,2015 that he requested. He states in his petition to this office that he is not interested in any specifically-named employees or any of their personal information, and he would happily take redacted records. Therefore, I find that MBTA must address the reasoning behind its decisions to release the same type of record in late 2015, and its decision to withhold the same type of record now. I find the MBTA has failed to thoroughly respond to a request for public records. Accordingly, the MBTA is hereby ordered, within ten (10) days ofthis order, to provide Mr. Dobson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the MBTA maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to MBTA a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of

Ms. Susan M. Krupanski, Esq. SPR16/250 Page 3 April 22, 2016 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). Once the fees are paid, you must provide the responsive records. cc: Mr. Ben Dobson