Liam T. O'Connell v. Massachusetts Port Authority (SPR 20180982)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 17, 2018 SPRlS/982 Joseph Kaigler, Esq. Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Attorney Kaigler: I have received the petition of Liam O'Connell, Esq. of Farrell & Smith LLP appealing the response of the Massachusetts Port Authority (Massport) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 17, 2018, Attorney O'Connell requested un-redacted copies of "I. MPA Maritime Incident Report Page 1, Incident Description Section; and 2. MP A Police Incident Report Page 2, redacted information in paragraphs 1 and 2." Attorney O'Connell also requested" ... any other documents in [Massport's] possession related to the referenced incident, including but not limited to emails, and recordings of phone calls or radio traffic." Massport provided a response on June 6, 2018, reiterating its December 17, 2017 response, which had included portions of the responsive ih records in redacted form. Massport's December 1 response claimed the records were redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with Massport's responses, Attorney O'Connell petitioned this office and this appeal, SPRl 8/982, was opened as a result. Purpose of request; identity ofrequestor Please note 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 requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney O'Connell's purpose in making the request has no bearing on the public status of any existing responsive records. 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, 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

Joseph Kaigler, Esq. SPR18/982 Page 2 July 17, 2018 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 O'Connell may wish to consider another means of seeking to obtain any existing responsive records. 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, § 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 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. Massport's December 1711 and June 6th responses In its December 17, 2017 response, Massport indicated that "[p] ursuant to Mass. Gen. Laws Ch. 4 §7(26)(a) and §7(26)(c) and in compliance with the following statutes and applicable regulations, and all protected personal and medical information, and other personal identifying data pertaining to third parties are redacted from the documents produced: (i) the Massachusetts Data protection statute (G.L. c. 93H); (ii) the Massachusetts Right of Privacy statute (G.L. c. 214 § lB); and/or the Massachusetts Fair Information Practices Act ('FIPA')." In its June 6, 2018 response, Massport referred Attorney O'Connell to its December 1i h response and further asserted that" ... it is not in possession of any other responsive records." Exemption (a) Massport claimed it redacted responsive records pursuant to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that

Joseph Kaigler, Esq. SPR18/982 Page 3 July 17, 2018 are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statutes provide in relevant part: "Personal information" a resident's first name and last name or first initial and last name in combination with any 1 or more of the following data elements that relate to such resident: (a) Social Security number; (b) driver's license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident's financial account; provided, however, that "Personal information" shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public. G. L. C. 93H § 1( iii). Right of Privacy; Remedy to Enforce. A person shall have a right against unreasonable, substantial or serious interference with

Joseph Kaigler, Esq. SPR18/982 Page4 July 17, 2018 his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. C. 214, § lB. Exemption (c) Massport indicated that it redacted responsive records pursuant to 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). First clause ofE xemption (c) - medical 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 and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure .. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Second clause ofE xemption (c) - privacy 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

Joseph Kaigler, Esq. SPR18/982 Page 5 July 17, 2018 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. Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Massport is advised that although it cites G. L. c. 214, § lB in support of its position to redact portions of the responsive records, this statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § lB provides no alternative legal basis to resist inspection of requested materials). Similarly, Massport is reminded that FIP A and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "determining whether the record sought is protected by FIP A depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). FIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIP A may also operate to restrict disclosure. Further, I find that Massport has not met its burden of explaining with specificity under the Public Records Law how an exemption applies to the redacted portions of the records. Massport is advised that if records are withheld or redacted under the Public Records Law, it

Joseph Kaigler, Esq. SPR18/982 Page 6 July 17, 2018 must provide a detailed response that meets its burden of supporting its redactions and exemption claims with specificity. A records custodian is requited to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § 1O (b )(iv). Additional responsive records 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 of records at the time of the request. See G. L. c. 66, § 1O (a)(ii). Although Massport claims it "is not in possession of any other responsive documents," Attorney O'Connell claims that aside from a few emails that were subsequently provided, " ... Massport did not provide any additional documents, Massport police turret tapes, or other recordings. Considering the potential seriousness of the longshoreman's injury, .. , it is not speculative to believe there are additional documents and recordings which Massport refuses to disclose." As such, Massport must clarify if it possesses any additional responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, Massport is ordered to provide Attorney O'Connell with 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: Liam O'Connell, Esq.