Colman M. Herman v. Massachusetts Bay Transportation Authority (SPR 20192330)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 4, 2019 SPR19/2330 Julie Ciollo, Esq. Assistant General Counsel/Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite #7760 Boston, MA 02116 Dear Attorney Ciollo: I have .received the petition of Colman Herman appealing the response of the Massachusetts Bay Transportation Authority (Authority/MBT A) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 19, 2019, Mr. Herman requested " ... hard copies and electronic copies of any and all settlement agreements, exit agreements, severance agreements, separation agreements, and/or the like executed with former employees by the Massachusetts Bay Transportation Authority. This is for the period January 1, 2018 to the present." Mr. Herman indicated that the search should be limited to" ... agreements that were for $50,000 or more." The Authority responded on November 7, 2019, acknowledging receipt of the request and requesting additional time to search for responsive records. Mr. Herman agreed to this extension. Subsequently, the Authority provided a response on November 18, 2019, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Authority's response, Mr. Herman petitioned . this office and this appeal, SPRI9/2330, was opened as a result. The P,iblic 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); 9:SO C.M.R. 32.06(3); see 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 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

Julie Ciollo, Esq. SPR19/2330 Page 2 December 4, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted p01iion 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. The Autlwrity 's November 181 response " In its November 18, 2019 response, the Authority indicated that the records are exempt from disclosure under Exemption ( c) of the Public Records Law. 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 disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). First clause ofE xemption (c) - personnel 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 information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pe1iaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a

Julie Ciollo, Esq. SPR19/2330 Page 3 December 4, 2019 result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). Under the first clause of Exemption (c), the Authority indicates that "Massachusetts comis have consistently determined that personnel file information includes, at a minimum, employment applications, employee evaluations, disciplinary documentation, and promotion, demotion or termii1ation information pertaining to a particular employee. Information falling within the 'personnel and medical files or information' category is absolutely exempt from disclosure. See, Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427 (1983)." The Authority also states that" ... the Massachusetts Supreme Judicial Court has determined that exempting personnel information from disclosure serves to protect the government's ability to function effectively as an employer and that the release of ce1iain personnel information could disrupt the government's capability to conduct sensitive and careful investigations involving employees. See, Wakefield Teacher's Association v. School Committee of Wakefield, 431 Mass. 792 (2000)." The Authority asserts that the requested records" ... directly concern specific public employees' separation from the MBTA and are core 'personnel files and information' as identified above. Therefore, they are absolutely exempt from disclosure." The issue of whether separation agreements are public records was decided in a 2013 Superior Court decision in Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). In Globe, the Superior Court affirmed the presumption that separation, severance, transition or settlement agreements are public records, subject to redaction. Id., at 34-35. The Globe decision also listed information that is properly subject to redaction under the personnel clause of Exemption ( c) , including: (1) promotion of grade; (2) compensation at a different salary grade; (3) adjustment in compensation; (4) waiver of bumping rights and/or recall rights; (5) entitlement to remain on administrative leave; (6 ) requirement to tender a letter of resignation; (7) demand of voluntary resignation; (8) reinstatement; (9) layoff; (10) agreement by an agency to remove a letter from a personnel file; (11) agreement by an agency concerning the providing ofreferences and their contents; (12) the requirement that an employee meet with a supervisor to review progress of assigned matters; (13) adjustment of an agency's records to reflect an employee's status; (14) adjustment or continuation of employee benefits, such as unemployment assistance, COBRA, and retirement benefits, and agreement regarding back wages; (15) recitations concerning grievances, including agreement to withdraw a grievance and acknowledgment by an employee of the absence of a pending grievance; (16) a statement of resolution of all claims concerning termination of employment and prior disciplinary actions, (17) agreement to turn in agency property, (18) global resolution involving the entering of a nolle prosequi by a prosecutorial official; (19) language affirming. an agency's legitimate concern for discipline and an employee's receipt of a memorandum of verbal discipline; and (20) completion by an employer of

Julie Ciollo, Esq. SPR19/2330 Page 4 December 4, 2019 harassment training. In light of the above, I find the Authority did not meet its burden of specificity in withholding the separation agreements, in their entirety; from disclosure under the personnel clause of Exemption (c). 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, § lO(a). 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 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, 4 77 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 the second clause of Exemption (c), citing the PETA and Globe Newspaper Co. decisions, the Authority states that " ... where the records sought concern separation from employment with the MBTA, the individuals who signed these agreements have a strong privacy interest in not only keeping the details of the agreements out of public view, but also in keeping the mere fact of their separations private. The likelihood of great personal embarrassment is high, given that there may be an assumption of wrongdoing or poor work performance associated with the agreements' existence. See, Attorney General Opinion in SPR 19-845, October 4, 2019 (recognizing a prevailing privacy interest in shielding information about terminations from

Julie Ciollo, Esq. SPR19/2330 Page 5 December 4, 2019 public view)." The Authority also asserts that "[t]he public interest in viewing the requested records does not outweigh the employees' right to privacy. Therefore, the records are properly shielded from disclosure under the second clause of Exemption ( c ). " Although the Auhtority indicates that there is a likelihood that disclosure would result in personal embarrassment," ... given that there may be an assumption of wrongdoing or poor work performance associated with the agreements' existence[,]" I find the Authority has not demonstrated that the agreements contain intimate details of a highly personal nature. As such, I find the Authority has not established any privacy interests that are not substantially outweighed by the public's interest in obtaining the requested information. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. PETA, 477 Mass. at 292. Conclusion Accordingly, the Authority is ordered to review the records, redact only where necessary, and provide Mr. Herman with responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten ( 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: Colman Herman