Wheeler Cowperwaite v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (SPR 20191283)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murrny Supen•isor of Records July 11, 2019 SPRI9/1283 Terence Kenneally, Esq. General Counsel Steamship Authority 22 Palmer A venue Falmouth, MA 02543 Dear Attorney Kenneally: I have received the petition of Wheeler Cowperwaite appealing the response of the Steamship Authority (Authority) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 11, 2019, Mr. Cowperwaite requested "[a]ll settlement agreements for federal case 17-CV-11847, with plaintiff ... " The Authority responded on June 25, 2019, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Authority's response, Mr. Cowperwaite petitioned this office and this appeal, SPR19/1283, 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, § 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 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, § lO(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

Terence Kenneally, Esq. SPR19/1283 Page 2 July 11, 2019 The Authority's June 251 response " In its June 25, 2019 response, the Authority states that the requested record" ... falls within two (2) exemptions from production as a public record in that it is(!) 'specifically or by necessary implication exempted from disclosure by statute' Mass. G.L. c. 4, sec. 7, clause 26th, para. (a); and/or it is (2) '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' Mass. G.L. c. 4, sec. 7, clause 26th, para. (c)." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that 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. Under Exemption (a), the Authority states that "[i]nformation in the record that [Mr. Cowperwaite] ha[s] requested relates to a specifically named customer in the Authority's reservation system and, pursuant to the second Section 40) of the Authority's Enabling Act, St. 1960, c. 701, as amended, the Authority is authorized and empowered: 'To maintain the confidentiality of all information relating to specifically named customers using the authority's reservations system including, but not limited to, passenger names, home addresses, email addresses, telephone numbers, credit and account data and the dates and times of their reservations and sailings. Such

Terence Kenneally, Esq. SPR19/1283 Page 3 July 11, 2019 information shall not be a public record, although it may be used and disclosed by the authority as necessary in connection with the appropriate conduct of its operations and in connection with law enforcement activities. The authority shall provide to a customer requesting any such information, all information that the authority has pertaining to that customer. The authority shall obtain the express, written consent of a customer before releasing customer information to a third party for commercial or noncommercial purposes."' As such, the Authority asserts that "[a]s far as [it is] aware, it is not necessary for the Authority to provide [Mr. Cowperwaite] with any of the requested documents in connection with the appropriate conduct of its operations or in connection with law enforcement activities. Therefore, the Authority cannot release to [Mr. Cowperwaite] any of the customer information [Mr. Cowperwaite] request[s] unless and until the Authority obtains its customer's express, written consent." 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 disclosur,e of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c ). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only 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: (I) 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 (PET A) v. Dep't of Agric. Res., 4 77 Mass. 280, 292 (2017).

Terence Kenneally, Esq. SPR19/1283 Page4 July 11, 2019 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. Under Exemption (c), the Authority states that" ... information in the record that [Mr. Cowperwaite] ha[ s] requested relates to a specifically named Authority employee, the disclosure of which may constitute an unwarranted invasion of the employee's personal privacy. Accordingly, the Authority cannot release to you any of the employee information you request unless and until the Authority obtains its employee's express, written consent." This office has consistently found that settlement agreements are public records, and may not be withheld entirely pursuant to Exemption (a), and either the first or second clause of Exemption (c) of the Public Records Law. Several decisions by Massachusetts courts support the notion that settlement agreements are public records that must be disclosed, but may be redacted. See Champa v. Weston Public Schools, 473 Mass. 86 (2015); see also Memorandum of Decision and Order in the matter between Emily Bazelon and the Town of South Hadley, Civil Action No. 11-212; see also Globe Newspaper Co., Inc. v. Exec. Office of Admin. and Finance, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. The Authority is advised that confidentiality agreements alone do not permit withholding of a settlement agreement under the Public Records Law nor affect an agency's duty to comply with the requirements of the Public Records Law. See Champa, 473 Mass. at 98. In light of the above, although the Authority claims that the settlement agreements contain customer information and information about an employee,". .. the disclosure of which may constitute an unwarranted invasion of the employee's personal privacy[,]" it is unclear how the settlement agreements catmot be redacted to remove certain confidential information regarding its customer or information that constitutes intimate details of a highly personal nature regarding its employee. The Authority must determine whether there are any portions of the responsive records that do not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § IO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, based on the Authority's response referencing its Enabling Act, and indicating that the requested records" ... relate[] to a specifically named customer in [its] reservation

Terence Kenneally, Esq. SPR19/1283 Page 5 Julyll,2019 system[,]" it remains uncertain how the settlement agreements are maintained as part of the Authority's reservation system. The Authority must clarify this issue. I understand a Public Records Division staff attorney contacted your office about this appeal. Co11clusio11 Given that the Authority has not met its burden to explain how an exemption applies to withhold the settlement agreements in their entirety, the Authority is ordered to review the records, redact where necessary, and provide Mr. Cowperwaite with responsive records, 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: Wheeler Cowperwaite