Allison Jarmanning v. Vineyard Transit Authority (SPR 20181065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 27,201 8 SPR1811065 Suzanne Cioffi Martha's Vineyard Transit Authority 11 A Street Edgartown, MA 02539 Dear Ms. Cioffi: I have received the petition of Allison Jarmanning of WBUR appealing the response of the Martha's Vineyard Transit Authority (Authority) to a request for public records. G. L. c. 66, 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Jarmanning requested "video of encounter between [Authority] driver and passenger on July 1 1, depicting the driver telling the passenger he was not picked up 'because you are black."' The Authority provided a July 17,2018 email response indicating that the video will not be release due to potential pending litigation. Upon receipt of the response, Ms. Jarmanning asked what exemption the Authority was citing for its denial. In your July 1g th email, you stated the denial was "[ulnder Exemption (c)-950 CMR 33.16-Invasion of Personal Privacy: General Rule." As a result, Ms. Jarmanning petitioned the Supervisor of Records (Supervisor), and this appeal was opened. TIze 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, 5 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, 5 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, 5 10(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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (61 7) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Suzanne Cioffi Page 2 July 27,2018 burden of establishing the applicability of an exemption). The A utlzority 's July 18,2018 response In its July 18 t" response, the Authority claims that the video footage is exempt from disclosure under Exemption (c) due to the regulations promulgated pursuant to G. L. c. 66A, the Fair Information and Practices Act (FIPA). See G. L. c. 66A, 5 2(c); see also 950 C.M.R. 33.16. Fair Information and Practices Act (FIPA) FIPA, which imposes restrictions on the dissemination of "personal data," reads in pertinent part that the holder maintaining personal data shall: not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought if the data subject is entitled to access under clause (i). The regulation, 950 C.M.R. 3 3.16, promulgated under the provisions of FIPA and cited by the Authority to withhold the video footage from disclosure due to invasion of personal privacy states: Personal data the disclosure of which may constitute an invasion of personal privacy is not a public record. In general, it is an invasion of personal privacy under M.G.L. c. 214, 5 lB, as appearing in St. 1973, c. 111 4, 5 62, to disclose personal data where such disclosure will result in an unreasonable, substantial or serious interference with the privacy of a data subject unless the data subject or his authorized representative consents to such disclosure. 950 C.M.R. 33.16. The Authority is reminded that FIPA 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). FIPA 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. Holvoke Hosp., 398 Mass. 372,379 (1986) (stating that "determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, 5 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). FIPA, 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, FIPA may also operate to restrict disclosure.

Suzanne Cioffi Page 3 July 27,2018 Exemption (c) In its July 18 thr esponse, the Authority indicates that it has withheld the video footage as an invasion of personal privacy. Therefore, the second clause of Exemption (c) may be applicable to the requested video record. Exemption (c) applies to: 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 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 lmow 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 A~ricR. es., 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 a. disputes and reputation. 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 Id. in a law-abiding and efficient manner. at 292.

Suzanne Cioffi Page 4 July 27,2018 In its July 18'" response, the Authority did not meet its burden to show how disclosure would result in personal embarrassment to an individual of normal sensibilities; whether the materials sought contain intimate details of a highly personal nature; nor did it address whether Id. the same information is available from other sources. at 292. Therefore, I find that the Authority may not withhold the responsive record, in its entirety, under the second clause of Exemption (c). Burden of specificity in claiming exemptions; duty to segregate The Authority denied Ms. Jarmanning's request without claiming the second clause of Exemption (c) with specificity to support the withholding of the responsive record or portions of the responsive record. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 IO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Authority did not meet its burden of demonstrating how the responsive record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Authority must produce any non-exempt, segregable portions of the public records. G. L. c. 66, 5 1O (a). Order Accordingly, the Authority is hereby ordered to review the video footage, redact where necessary and provide Ms. Jarmanning with the responsive record, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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 C/ Supervisor of Records cc: Allison Jarmanning