Nicole M. Avitabile, Esq. v. Massachusetts Bay Transportation Authority (SPR 20171168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 8, 2017 SPR17/1168 Julie Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition ofNicole Avitabile, Esq. of Rawson Merrigan & Litner, on behalf of her client, appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile requested all records related to a motor vehicle accident occurring on July 30, 2017, including reports, photos and videos. The MBTA provided Attorney Avitabile with the MBTA Transit Police Department's report of the accident, in redacted format, pursuant to the second clause of Exemption (c) and Exemption (f) of the Public Records Law. Attorney Avitabile petitioned this office for an appeal. Attorney Avitabile believes that the MBTA has photos and/or videos in their custody or control that are responsive to her request, but none were provided to her. Nor does the August 24th response state that no photos and/or videos exist. Attorney Avitabile is also appealing the redaction of certain information from the report under Exemptions (c) and (f). Purpose of request; identity of requester In her petition, Attorney Avitabile states that while she does represent an identified person, her purpose for requesting public records should not be a consideration for the MBTA to decide what responsive record to provide and what to redact. Attorney Avitabile should be advised that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police ofLexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Avitabile's purpose in making the request has no bearing on the public status of any existing responsive records. 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 Ciollo, Esq. SPR17/1168 Page2 September 8, 2017 It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Avitabile may wish to consider another means of seeking un-redacted records or any records that may be properly withheld under the Public Records Law. 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 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(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. Exemption (c) -second clause Your August 24th response accompanying the redacted report states that the MBTA has withheld certain information contained in the report, such as home addresses, phone numbers, social security numbers, and dates ofbirth pursuant to the second clause of Exemption (c). Exemption (c) permits the withholding of: 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). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Julie Ciollo, Esq. SPR17/1168 Page 3 September 8, 2017 This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. While the MBTA may properly withhold social security numbers under the second clause of Exemption (c), it is unclear how the home addresses, telephone numbers and dates of birth are "intimate details of a highly personal nature," that may be withheld under Exemption (c). The MBTA has not explained how the redacted information is associated with any of the subjects of the report that may allow the MBTA to withhold the information under the Public Records Law. Therefore, I find that the MBTA has not met its burden of supporting its Exemption (c) claim to withhold the home address, telephone numbers and dates ofbirth. Exemption (f) Also in your response you state that, "portions of the report have also been redacted to the extent that the report contains information that is exempt from disclosure under Exemption (f)." Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential

Julie Ciollo, Esq. SPR17/1168 Page 4 September 8, 2017 investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions m:ay be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. The MBTA's response does not specifically state what information has been redacted under Exemption (f), it merely states redactions have been made "to the extent" that the report contains any information that may be withheld under Exemption (f). It is unclear whether identification of victims of a crime or voluntary witness information was redacted, or whether information contained in the record would prejudice any further investigative efforts. Therefore, I find that the MBTA has not met its burden of specifically supporting its Exemption (f) claim to withhold information within the content of the report. A Public Records Division attorney telephoned you to discuss this appeal and the MBTA's exemption claims to withhold content and possibly photos and/or video footage regarding the accident. A copy of the appeal file was provided to you and you indicated that another response would be forthcoming. Conclusion Accordingly, whereas the MBTA has indicated that a subsequent response will be provided, I will consider this administrative appeal closed with the proviso that this subsequent response is provided to Attorney Avitabile in a manner consistent with this order, the Public Records Law, and its Regulations within ten (1 0) business days. A copy of the 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. Attorney Avitabile may appeal the substantive nature ofthe response within ninety (90) calendar days. 950 C.M.R. 32.08(1 ). Sincerely, ~UIT~ Supervisor of Records cc: Nicole Avitabile, Esq.