Nicole M. Avitabile, Esq. v. Massachusetts Bay Transportation Authority (SPR 20171750)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 10, 2018 SPR17/1750 Julie Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Attorney Nicole Avitabile appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to her request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile requested "any and all public records in your possession that is related to a motor vehicle accident including, but not limited to, reports, photos, and videos." Attorney Avitabile also provides the date, location, and a driver involved in the accident. Previous appeals This request was the subject of previous appeals. See SPRl 7/1168 Determination of the Supervisor of Records (September 8, 2017); SPRl 7/1497 Determination of the Supervisor of Records (October 23, 2017). In a response dated November 1, 2017, the MBTA provides information regarding its use of Exemption ( c) as well as the existence of additional records. Attorney Avitabile objects to this response and SPRl 7 /1750 was opened as a result. 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, § IOA(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, § lO(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 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. SPRl 7/1750 Page 2 January 10, 2018 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal 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. 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.

Julie Ciollo, Esq. SPRl 7/1750 Page 3 January 10, 2018 In the MBTA's November 1st response you indicate "[t]o clear up any confusion as to what data was redacted from the incident report provided to you, the following items were redacted: victim date of birth, victim social security number, victim operator's license number, involved party date of birth, involved party social security number, involved party operator's license number." You also note that "[t]his information was redacted in accordance with Exemption ( c) to the Public Records Law, as explained in my August 24th and September 28th,, response. In her most recent appeal petition, Attorney Avitabile asserts "it is unclear from the response how each piece of information redacted is an 'intimate details of a highly personal nature,' that may be withheld under exemption (c ). The MBTA has failed to explain how the redactions are associated with any of the subjects of the report that may allow the MBTA to withhold the information pursuant to the public records law." In my September gth determination I found the MBTA may properly withhold social security numbers. I now find the MBTA has met its burden to withhold license numbers within the responsive records under the second clause of Exemption (c). However, the MBTA has not met its burden to withhold dates of birth under Exemption (c). See Doe v. Registrar of Motor Vehicles, 1 Mass. L. Rptr. 156, 21 (1993) (finding that an individual's "date of birth is not information that a person of 'normal sensibilities' would go to great lengths to keep private"); Flatley, 419 Mass. at 511 (c ustodian has the burden of establishing the applicability of an exemption). Additional responsive records In its November 1st response, the MBTA also asserts "[i]n response to your continued insistence that the MBTA possesses additional records that are responsive to your request, I again state that no other records exist." Attorney Avitabile indicates in her appeal petition that "Attorney Ciollo has failed to address my request for any other public records in the possession, custody, and control of the MBTA such as photos, videos, and crash reconstruct reports because there was a fatality; arid as a result of said fatality, the scene of the incident was subject to an· investigation according to witnesses at the scene." She also notes her belief that each officer listed in the report may have created a public record/report as a result of their involvement and suggests that her client has seen video from the camera affixed to the vehicle. In light of the information provided in Attorney Avitabile's appeal, the MBTA must confirm whether any additional records exist, including photos, videos, and crash reconstruct reports. See G. L. c. 66, § lO(b )(ii) (providing that a written response to a request shall "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves"). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). Further,

Julie Ciollo, Esq. SPRI 7/1750 Page 4 January 10, 2018 in accordance with the Public Records Law, a custodian is expected to use his/her superior knowledge of the records in his/her custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). I understand a Public Records Division staff attorney contacted you about this matter. Conclusion Accordingly, the MBTA is ordered to provide Attorney Avitabile the dates of birth within the responsive records. Further, the MBTA must provide an explanation regarding the existence of any additional records 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: Nicole Avitabile, Esq.