Scott M. Zanolli v. Massachusetts Port Authority (SPR 20192012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords· October 16, 2019 SPR19/2012 Margarita Bardales Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Bardales: I have received the petition of Scott M. Zanolli, Esq. of Pierce & Mandell, P. C. appealing the response of the Massachusetts Port Authority (Massport) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Zanolli requested: 1. Exterior video surveillance footage depicting the construction site located at 450 Summer St., Boston, MA 02210 from June 22, 2019 at 11:00 p.m. through June 23, 2019 at 5 a.m.; and 2. Exterior video surveillance ofMassport Haul Rd., Boston, MA 02210 between World Trade Center Ave and D Street from June 22, 2019 at 11:00 p.m. through June 23, 2019 at 5 a.m. On July 26, 2019, Robe1ia Y. Goto, Esq., Senior Legal Counsel ofMassport, acknowledged receipt of the request and indicated that it was in the process of locating responsive records. In addition, Attorney Goto informed Attorney Zanolli that ifthere are any costs in providing the records, Massp01i will provide a fee estimate. In an August 23rd response, Attorney Goto asserted, "[w]ithout confirming or denying the existence of electronic video surveillance cameras in the location you specified, [Massport] will produce only those records that are deemed public under G. L. c. 66, § 10. Accordingly, [Massport] denies [A ttorney Zanolli' s] request to the extent that records may exist pursuant to M. G. L. c. 7 (26)(c) and M.G.L. c. 214, § lB." As a result of Massp01i's denial, Attorney Zanolli petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Attorney Zanolli asserts, "Massport's response is inconsistent with G. L. c. 66, § IO(b) and 950 CMR 32.06 ... Specifically, Massp01i One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us .

Margarita Bardales SPR19/2012 Page 2 October 16, 2019 has failed to: (i) identify whether any such records are in existence and within its possession, custody or control; (ii) identify the applicability of the cited exemptions to the withheld records; (iii) inform the requester of the right to appeal the denial to the Supervisor under 950 CMR 32.08(1) and the right to seek judicial review of the unfavorable decision; and (iv) provide information sufficient to permit a determination as to whether the exemptions apply." See G. L. c. 66, 1O (b )(i)-(iv). Status of the requestor; reason for the request In his petition, Attorney Zanolli indicates that Pierce & Mandell represents John Moriarty and Associates, Inc, the General Contractor on a construction project located at 450 Summer Street, Boston, MA. It is Attorney Zanolli's interest in receiving video surveillance of the construction site and surrounding public roads during the time frame of an incident. Attorney Zanolli states, "[h]ere the actions of the individual, which we believe were captured and stored in the form of the requested records, occurred entirely on our client's job site and public roads or rights of way, areas within which the individual has no reasonable expectation of privacy." It is important for Attorney Zanolli to understand that his interest in the responsive record does not afford him any greater right of access to the requested record under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested 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 Zanolli's and his client's status will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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); 9.50 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) (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 ... "); 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).

Margarita Bardales SPR19/2012 Page 3 October 16, 2019 Massport's August 23, 2019 response In its August 23rd response, Massport indicates that it is withholding any responsive record in its possession under Exemption (c) and G. L. c. 214, § lB. Exemption (c) 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 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). The first protects 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 will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 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 of (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 persqnal 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

Margarita Bardales SPR19/2012 Page4 October 16, 2019 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. Massport did not meet its burden of specificity in claiming either the first clause of Exemption ( c) or the second clause of Exemption ( c ), to withhold the video surveillance in its possession and its entirety. In claiming the second clause of Exemption (c) to withhold records or information, Massp01i has a burden to demonstrate whether disclosure would result in personal embarrassment to an individual of normal sensibilities; whether the materials sought contain intimate details of a highly personal nature; arid whether the same information is available from other sources. See PETA , at 292. Neither did Massport apply the 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. Id., at 291. G. L. c. 214, § JB Massport also cites, G. L. c. 214, § lB in support of its position to withhold responsive records. The statute provides in relevant part: A person shall have a right against unreasonable, substantial or serious interference with 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. However, this statute provides no alternative legal basis to resist inspection of the requested materials. See Cape Cod Times v. Sheriff of Barnstable, 443 Mass. 587, 595 (2005). Burden of specificity in claiming exemptions Massp01i denied Attorney Zanolli's request without providing any support in claiming Exemption (c) in the Public Records Law to withhold any records in its possession. 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); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Massport did not meet its burden of demonstrating how responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions

Margarita Bardales SPR19/2012 Page 5 October 16, 2019 are narrowly construed and are not blanket in nature). Massport must produce any non-exempt, segregable pmiions of the public record(s). G. L. c. 66, § lO(a). Furthermore, Mas sport did not identify the records, or pmiions of records in its possession that it withheld from disclosure under Exemption ( c ). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, Masspmi withheld responsive records without identifying whether it is in possession of the responsive video surveillance. Therefore, Massport must identify what type of record(s) it has in its possession that it withheld. Conclusion Accordingly, I find that Massport did not meet its burden of responding to this request. Massport is ordered to provide Attorney Zanolli with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Scott M. Zanolli, Esq.