Christian A. Williams v. Massachusetts Bay Transportation Authority (SPR 20211391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2021 SPR21/1391 Julie A. Ciollo, Esq. Massachusetts Bay Transportation Authority 10 Park Plaza Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Christian A. Williams 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). On May 18, 2021, Mr. Williams requested “any and all employee complaints, discrimination complaints, service complaints, and/or safety violations for [a named] MBTA employee.” The MBTA responded on June 2, 2021, citing Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the MBTA’s response, Mr. Williams appealed, and this case 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, § 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); 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, § 10(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

Julie A. Ciollo, Esq. SPR21/1391 Page 2 June 11, 2021 Current Appeal In his appeal petition, Mr. Williams asserts “[i]t is difficult to see how none of the records [he] request[ed], even if redacted can be released by the record holder.” The MBTA’s June 2nd Response In its June 2, 2021 response, the MBTA denied Mr. Williams’ request, citing Exemption (c) of the Public Records Law. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). 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 pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). Analysis under 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. 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). When analyzing a privacy claim, there is 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

Julie A. Ciollo, Esq. SPR21/1391 Page 3 June 11, 2021 carrying out their duties in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the MBTA asserts the following: To be clear, the MBTA is neither confirming nor denying the existence of responsive records. In this case, merely acknowledging the existence of disciplinary records for a named individual could cause the type of harm that Exemption (c) exists to guard against. That is, a person’s reputation could be damaged by the public disclosure of these records. For this reason, the MBTA must deny your request under Exemption (c). Producing non-exempt, segregable portions of records, if any, is not feasible in this instance because your request mentions a particular employee; therefore, redaction is not sufficient to protect non-public information from disclosure. Burden of Specificity; Segregable Portions The MBTA has not met its burden of specificity in claiming Exemptions (c) to redact or withhold the requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv). The 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.” G. L. c. 66, § 10(b)(iv); see Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The MBTA has not identified any of the records, categories of records, or portions of records in its possession that it intends to withhold from disclosure. Please be advised, any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). It is unclear what records responsive to Mr. Williams’ request may exist, and what records the MBTA is withholding. Therefore, the MBTA must identify any records it has in its possession that it is withholding under Exemption (c), as well as provide specific reasons for such withholding. Conclusion Accordingly, the MBTA is ordered to provide Mr. Williams with a response to his request, 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.

Julie A. Ciollo, Esq. SPR21/1391 Page 4 June 11, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christian A. Williams