Adam Vaccaro v. Massachusetts Bay Transportation Authority (SPR 20180269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 14, 2018 SPRlS/269 Julie Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Adam Vaccaro ofthe 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." Previous appeals This request was the subject of previous appeals. See SPR17/1193 Determination of Supervisor (September 8, 2017); SPR17/1370 Determination of Supervisor (October 12, 2017; January 29, 2018). I closed SPR17/1370 by ordering the MBTA to provide Mr. Vaccaro with redacted records in a manner consistent with the order, the Public Records Law, and its Regulations. In the alternative, I indicated that the MBTA may provide this office an unredacted copy of the responsive records for in camera inspection. The MBTA provided the records for in camera inspection. After reviewing the records in camera, I found that the MBTA did not meet its burden to withhold responsive records in their entirety under Exemption (c) of the Public Records Law. Following the in camera inspection, the MBTA provided a response on February 23, 2018, which included responsive records in redacted form. The MBTA claimed the redactions were made pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the MBTA's response, Mr. Vaccaro petitioned this office and this appeal, SPR18/269, was opened as a result. 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 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. SPR18/269 Page2 March 14, 2018 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, § 1O (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. The MBTA 's February 23'd response In its February 23,2018 response, the MBTA indicated that" ... in accordance with the Supervisor's Order, the MBTA has redacted information from these resumes that, if provided, would reveal the identities of the candidates and thwart their legitimate privacy interests." The MBTA asserted that "[t]his information is exempted from disclosure under Massachusetts General Laws Chapter 4, Section 7(26) (c), which exempts materials or data 'relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."' In his current appeal Mr. Vaccaro notes "[w]hile I appreciate the agency sharing redacted resumes from finalists, I believe the level of redaction is still inadequate to provide the public with insight into the qualifications of these individuals. I believe the MBTA should not redact the companies these individuals worked for, which, on their own, are not identifying information." Exemption (c) The MBTA claimed it redacted responsive records under the second clause of Exemption (c) of the Public Records Law. 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). Second clause ofE xemption (c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only

Julie A. Ciollo, Esq. SPR18/269 Page 3 March 14,2018 the second clause of Exemption (c) is applicable to this determination. 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. In my January 29, 2018 determination, I found that the MBTA did not meet its burden to establish that responsive records could be withheld in their entirety under Exemption (c). I indicated that the MBTA could disclose certain information, such as titles, dates of employment, educational degrees and certifications, general descriptions of industries and training experiences, and summaries of professional duties. Although the MBTA has provided portions of the responsive records, I find that certain portions about the general descriptions and training experiences, and summaries of professional duties could be provided without invading the privacy interests of the individuals involved. Further, I find that the MBTA has not met its burden to show how the release of certain portions about the general description and training experiences, and summaries of professional duties, would reveal the identities or create a risk of indirectly identifying individuals in the records if a person was familiar with the individual in question. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983) (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). Pursuant to the Public Records Law, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police

Julie A. Ciollo, Esq. SPR18/269 Page4 March 14,2018 Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated that the MBTA would provide a supplemental response to Mr. Vaccaro. Conclusion Accordingly, whereas the MBTA has indicated that it would provide a supplemental response, I will consider this administrative appeal closed with the proviso that the MBTA provide said response, 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. Mr. Vaccaro may appeal the substantive nature ofthe MBTA's response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Adam Vaccaro