Beth Healy v. Massachusetts Bay Transportation Authority (SPR 20221819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 18, 2022 SPR22/1819 Julie Ciollo, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Beth Healy, of WBUR, 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 July 22, 2022, Ms. Healy requested “the disciplinary history for the operators in ... three recent crashes” specified by date. The MBTA responded on July 28, 2022, citing Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(c). Unsatisfied with the MBTA’s response, Ms. Healy 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 agency or municipality 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. Att’y 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

Julie Ciollo, Esq. SPR22/1819 Page 2 August 18, 2022 Current Appeal In her appeal petition, Ms. Healy argues the following: These records are of vital public interest, not only for everyday riders of the T, but in the context of a federal safety probe currently underway at the T, in the wake of numerous, serious safety problems. The T, as a practice, does not release the names or records of its drivers, even when those drivers are involved in well-publicized crashes that result in dozens of injuries, or even death. [Ms. Healy] believe[s] the names and records of these drivers should be released. These are public workers, responsible for the safety of tens of thousands of riders, receiving pay and pensions subsidized by riders and taxpayers. [Ms. Healy] would also note that the driving records of average citizens driving their cars in Massachusetts are public records. The MBTA’s July 26th Response In its July 26, 2022 response, the MBTA cites Exemption (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(c). 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is 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 Med. Exam’r, 404 Mass. 132, 135 (1987). 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Julie Ciollo, Esq. SPR22/1819 Page 3 August 18, 2022 This exemption 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). 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. Under Exemption (c), the MBTA argues the following: [R]ecords responsive to this request include personnel information concerning specific MBTA employees and are therefore protected from disclosure. ... Public release of the requested records, even in a format where employee names were redacted, would likely lead to the indirect identification of the subject individuals. This is the “unwarranted invasion of personal privacy” that is expressly protected against under Exemption (c). ... In this case, the requested information, if revealed, would result in personal embarrassment to an individual of normal sensibilities. The information relates to an intimate detail of a highly personal nature – in this case, employee disciplinary histories. Further, the information is not available from any other source. For these reasons, the public interest in obtaining the requested information does not substantially outweigh the seriousness of the resulting invasion of privacy from disclosing the records. Based on the MBTA’s response, it is unclear how the disciplinary records of public transit operators would constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. As noted above, the public has a recognized interest in knowing whether such public servants are carrying out their duties in a law abiding manner. See PETA, 477 Mass. at 292. Consequently, it is unclear how the public interest in obtaining the requested information would not outweigh the seriousness of any invasion of privacy. The MBTA must clarify this. Conclusion Accordingly, the MBTA is ordered to provide Ms. Healy with a response to her 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 the response to this office at pre@sec.state.ma.us.

Julie Ciollo, Esq. SPR22/1819 Page 4 August 18, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Beth Healy