Colman Herman v. Massachusetts Port Authority (SPR 20211964)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2021 SPR21/1964 Jennifer Mehigan Director of Media Relations Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Mehigan: I have received the petition of Colman Herman appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In his August 3rd appeal, Mr. Herman requested a copy of a certain COBRA letter. Previous appeal This request was the subject of a previous appeal. See SPR21/1637 Determination of the Supervisor of Records (July 19, 2021). The Authority provided Mr. Herman with a response on August 2, 2021. Unsatisfied with the Authority’s response, Mr. Herman petitioned this office and this appeal, SPR21/1964, 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. 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

Jennifer Mehigan SPR21/1964 Page 2 August 17, 2021 The Authority’s August 2nd response In its August 2nd response, the Authority cites Exemption (c) of the Public Records Law to withhold the requested information. 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). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 carrying out their duties in a law abiding and efficient manner. Id. at 292.

Jennifer Mehigan SPR21/1964 Page 3 August 17, 2021 In its June 4th response, the Authority stated, “[t]he Authority denied your request for the COBRA letter because such record is ‘personnel information.’” The Authority further explained, “t]he Massachusetts Superior Court specifically stated that COBRA information is entitled to be withheld from mandatory disclosure pursuant to Exemption (c) because it ‘trenches upon…core ‘personnel information.’’ See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 2013 Mass. Super. LEXIS 2947, at *44-*45 (stating that such information includes ‘adjustment or continuation of employee benefits, such as…COBRA’).” Conclusion Upon review of the Authority’s response, I find that consistent with the holding in the Globe case, the Authority has met its burden to withhold the requested information under Exemption (c). Accordingly, I will now consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman