Ted Daniel v. Massachusetts Department of Transportation (SPR 20222768)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2022 SPR22/2768 Stephen W. Shorey, Esq. Senior Counsel, Public Records and Records Management MassDOT/MBTA Office of General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Shorey: I have received the petition of Ted Daniel, of WFXT-TV, Boston 25 News, appealing the response of the Massachusetts Department of Transportation (Department/MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 28, 2022, Mr. Daniel requested: [1] All payroll records for [two named individuals] that show weekly time inputs from 1/01/20 to last payout[;] [2] All documents showing how [two named individuals] were separated from service from the RMV[;] [3] All documents showing payout amounts for accrued time or any other reason for [two named employees] upon/after their separation from service and what those payouts entailed. If there are separation agreements, please provide those[;] [4] All investigative records relating to fraud concerning road tests from 01/01/18 to 3/01/22. On November 9, 2022, the Department responded. Unsatisfied with the Department’s response, Mr. Daniel petitioned this office and this appeal, SPR22/2768, 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, § 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

Stephen W. Shorey, Esq. SPR22/2768 Page 2 December 15, 2022 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. 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. The Department’s November 9th Response In its November 9, 2022 response, the Department asserts that it is redacting or withholding the responsive records pursuant to Exemptions (c), (f), and (o) of the Public Records Law and the attorney-client privilege. G. L. c. 4, § 7(26)(c), (f), (o). Requests 1 and 3 Regarding Request 1, the Department provided the responsive records but noted that “MassDOT removed certain personnel information within these records under [Exemption (c)]….” Regarding Request 3, the Department states, “attached please find the final payroll record for [two named individuals]. There are no separation agreements. MassDOT redacted certain personal and personnel information within these records under [Exemption (c)], as well as home addresses under [Exemption (o)].” 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). 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

Stephen W. Shorey, Esq. SPR22/2768 Page 3 December 15, 2022 (1980). Therefore, determinations must be made on a case by case basis. 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. Sch. 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 Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). This exemption 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 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. 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 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). Based on the Department’s response, it is unclear what information the Department redacted from the records, nor how the information constitutes one of the core categories of personnel information that may be withheld. Additionally, it is uncertain how the redacted information is an intimate detail of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or

Stephen W. Shorey, Esq. SPR22/2768 Page 4 December 15, 2022 authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). To the extent that the Department redacted the home address of the employees, I find the Department may permissibly withhold that information from disclosure. Requests 2 and 4 Regarding Request # 2, the separation documents, the Department asserts: MassDOT is withholding responsive records under [Exemption (c)]. Massachusetts courts have consistently determined 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). Specifically, termination information related to a specific individual may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). 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). . . . In addition, in response to this request MassDOT is withholding responsive records under [Exemption (f)], which exempts certain investigatory materials. Specifically it applies to materials necessarily compiled out of the public view by investigatory officials that, if disclosed, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Disclosure of responsive records could impede an ongoing investigation about this matter. With respect to Request # 4, the investigative records, the Department asserts it “is withholding responsive records under [Exemption (c)], to the extent that such records are contained within the relevant personnel files.” The Department reiterates the same reasoning as stated in its response to Request # 2. Additionally, the Department states: MassDOT is also withholding records relating to any ongoing investigation under [Exemption (f)], which exempts certain investigatory materials. Specifically, it applies to materials compiled out of the public view by investigatory officials

Stephen W. Shorey, Esq. SPR22/2768 Page 5 December 15, 2022 that, if disclosed, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Disclosure of responsive records could impede any ongoing investigation about this matter. See Exxon Corp. v. FTC, 384 F. Supp. 755 (D.D.C. 1974); Campbell v. Department of Health and Human Services, 683 F.2d 256 (D.C. Cir. 1982). In particular, disclosing the requested records at this time is likely to prejudice the cooperation of witnesses, hinder investigative efforts by revealing potential leads, lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation, or harm a potential prosecution. See Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976). Therefore, MassDOT is claiming Exemption (f) to withhold any internal investigation records because disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Based on the Department’s response, it is unclear what records responsive to Requests 2 and 4, are being withheld from disclosure. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. 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 ... “); see also Globe Newspaper Co. v. Police

Stephen W. Shorey, Esq. SPR22/2768 Page 6 December 15, 2022 Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Additionally, it is not clear from the Department’s response how the records constitute one of the core categories of personnel information that may be withheld. It is uncertain how the redacted information is an intimate detail of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Further, it is unclear how the records constitute investigative materials nor how disclosure of any segregable portions “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Consequently, I find that the Department did not satisfy its burden to redact and/or withhold the responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the Attorney-client privilege, and regarding Request 4, the Department states:

Stephen W. Shorey, Esq. SPR22/2768 Page 7 December 15, 2022 Finally, to the extent records were drafted under the direction of attorneys, the records are protected from disclosure by the attorney-client privilege, which applies under the Public Records Law. These records are between MassDOT personnel and MassDOT attorneys and concern discussions seeking legal advice. These communications were sent or received during the course of the client’s search for legal advice, they were made in confidence, and the privilege has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007). Where the Department has not provided a privilege log with a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed pursuant to G. L. c. 66, § 10A(a), I find the Department has not met its burden to withhold the responsive records under the attorney-client privilege. Conclusion Accordingly, the Department is ordered to provide Mr. Daniel with a response to the request, 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, Manza Arthur Supervisor of Records cc: Ted Daniel