Daniel Wells v. Massachusetts Bay Transportation Authority (SPR 20192271)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

November 21, 2019 SPR19/2271

Sonia Skinner, Esquire

Massachusetts Bay Transportation Authority

10 Park Plaza, Suite 7760

Boston, MA 02116

Dear Attorney Skinner:

. [have received the petition of Daniel P. Wells appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 26, 2019, Mr. Wells requested “[a] copy of all MBTA Transit Police Department reports and closed circuit video recordings related to an incident on August 4, 2019 which occurred at the State Street Station at approximately 12:15 am.”

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, § 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, § 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, § 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

_ 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).

The MBTA’s September 26" response

In its September 26" response, the MBTA denied the request for responsive records in their entirety under Exemption (c) of the Public Records Law. As a result, Mr. Wells appealed and SPR19/2271 was opened.

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

Sonia Skinner, Esquire SPR19/2271 Page 2 November 21, 2019

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). First clause of Exemption (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, 432-34 (1983). The first clause, creates a categorical exemption for personnel 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 will be of a sufficiently personal 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 (1989).

Second clause of Exemption (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 Ethical Treatment of Animals. Inc. (PETA) v. Department of Agricultural Resources, 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, 428 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number).

Sonia Skinner, Esquire SPR19/2271 Page 3 November 21, 2019

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 292. 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 the second clause of Exemption (c), the MBTA states that “it has determined that the public interest in the release of this personal information does not outweigh the privacy interests of the individuals(s) involved.”

The MBTA's September 26" response did not contain the specificity required in a denial

- of access to public records. Instead, the MBTA's response simply cites Exemption (c) without any further explanation as to the exemption's applicability to the requested records. The MBTA is not permitted to issue a blanket denial without providing any further information with respect to the requested records. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Based on the MBTA's response, I find the MBTA must provide additional information regarding whether the closed circuit video recordings can be redacted in a way to prevent the disclosure of the identities of those individuals with a privacy interest. As a result, I find that the MBTA did not satisfy its burden in responding to this records request in order to comply with the Public Records Law and its Access Regulations.

Order

Accordingly, the MBTA is ordered to provide Mr. Wells 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,

Llecea

Rebecca S. Murray Supervisor of Records ce: Daniel P. Wells