Adam Vaccaro v. Massachusetts Bay Transportation Authority (SPR 20171193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 8, 2017 SPR17/1193 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Adam Vaccaro of The Boston Globe 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, Mr. Vaccaro requested "[t ]he resumes or CV s of all finalists for the position of General Manager of the Massachusetts Bay Transportation Authority." The MBTA provided a response dated August 29, 2017 in which it provided certain responsive records, but denied access to others under Exemption (c) of the Public Records Law as well as the attorney-client privilege. G. L. c. 4, § 7(26)(c). 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, § lOA( 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, § IO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the 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 A. Ciollo, Esq. SPR17/1193 Page 2 September 8, 2017 Current appeal In its August 29th response the MBTA states "[b]y way of factual background, the resumes and CV s of finalists for the position of General Manager for the MBTA were provided to John Englander, General Counsel for the MBTA, and are solely in his possession in hard copy format. No other electronic or physical copies ofthese records exist within the MBTA." The MBTA provided a copy of incoming General Manager Luis Ramirez's resume, but withheld the remaining responsive records under Exemption (c) and the attorney-client privilege. 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). It appears the MBTA only invokes the second clause of Exemption (c) in its response. 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 Comrn'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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

Julie A. Ciollo, Esq. SPR17/1193 Page 3 September 8, 2017 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. Resumes and CVs pertaining to candidates not hired In his request to the MBTA, Mr. Vaccaro explains "[p]lease note that in May 2017, Governor Baker said there were 'more than five and less than 15 candidates for the position.' I am referring to this group of finalists." The MBTA asserts that "[t]he finalists for the position of General Manager of the MBTA have a privacy interest in the disclosure of their applicant status that outweighs the public interest in obtaining copies of their resumes." You further explain that the MBTA's search "attracted interest from several high level executives" and claim that "[j]ob applicants, including persons then holding executive positions at other institutions, have legitimate privacy concerns during the recruitment process-in particular, about the disclosure of the very fact that they have applied for a new job, a fact which likely would affect their existing employment relationships if disclosed." The MBTA notes that the finalists provided their resumes to the MBTA in confidence and that "[d ]isclosing the requested resumes would only serve to embarrass these individuals and cause harm-potentially severe harm-to their existing employment relationships." You claim "[t]he private interest in preventing disclosure outweighs any public interest in the contents of the resumes, which is greatly diminished in the case of individuals who are not hired. Therefore, the resumes are exempt from disclosure under M.G.L. c. 4, § 7, clause 26 (c)." Considering the factors in the PETA decision, I find the MBTA has met its burden to show that the candidates that were not hired have a privacy interest in these matters. See PETA, 477 Mass. at 292. However, as described above, the balancing test for Exemption (c) 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. Id. 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. In this particular case, the public has an interest in transparency in the process of hiring, managing and compensating public employees. See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 28 Mass. L. Rep. 499 (2011). With respect to whether redacted records may be provided, the MBTA asserts "[i]n this matter, no amount of redaction of personal information could shield the applicants from embarrassment and potential harm. As high level executives, many of which have national profiles, inferring their identities based on prior experience and qualification~ listed in resumes is easily accomplished."

Julie A. Ciollo, Esq. SPR17/1193 Page 4 September 8, 2017 However, despite the MBTA's claim that redaction is not useful, it is unclear why information, such as educational and professional training and experience, cannot be provided in order to shed light on the applicant pool while also protecting privacy interests. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Attorney-client privilege With respect to the MBTA's attorney-client privilege claim, please note that a records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Disclosing attorney-client communications to a third party generally undermines the privilege. Comm'r of Revenue v. Comcast Corp., 453 Mass. 293, 306 (2009). The MBTA indicates "the resumes were only provided to the MBTA's General Counsel. They were provided to him for the purpose of ( 1) securing legal advice regarding the hiring process as it applies to the particular individuals, and (2) facilitating negotiations with potential hires and contracting with the selected individual." You assert that the MB TA "relied on this privilege in ensuring that the hiring process included the provision of candid legal advice, made in confidence, which would result in the selection of a General Manager who best suited the MBTA's needs." However, the MBTA has not met its burden to establish that the responsive resumes were confidential communications received during the course of the client's search for legal advice, nor has the MBTA established that the privilege has not been waived through disclosure to third parties. See Suffolk, 449 Mass. at 450 n.9; Comcast, 453 Mass. at 306. In camera review ofr ecords withheld under a claim of attorney-client privilege G. L. c. 66, § lOA( a) discusses the ability of the Supervisor of Records to conduct an in camera inspection of records withheld on the basis of a claim of attorney-client privilege. This section provides in pertinent part: In assessing whether a violation has occurred, the supervisor of records may inspect any record or copy of a record in camera; where a record has been withheld on the basis of a claim of the attorney-client privilege, the supervisor of

Julie A. Ciollo, Esq. SPR17!1193 Page 5 September 8, 2017 records shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. If an agency or municipality elects to provide a record, claimed to be subject to the attorney-client privilege, to the supervisor of records for in camera inspection, said inspection shall not waive any legally applicable privileges, including without limitation, the attorney- client privilege and the attorney work product privilege. G.L.c.66,§ lOA(~. As noted above, pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA(a). The MBTA may elect to provide this office with unredacted copies of the responsive records for in camera review. However, if it does not elect to do so, it must provide this office a response with further information relating to the description of the record, authors and recipients, and the grounds upon which the attorney-client privilege is being claimed as contemplated in G. L. c. 66, § lOA( a). I understand a Public Records Division staff attorney contacted your office about this matter. Conclusion Accordingly, the MBTA is ordered to provide a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Adam Vaccaro