Nathaniel Trumbull v. The Steamship Authority (SPR 20231189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 20, 2023 SPR23/1189 Sean F. Driscoll Records Access Officer Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority 228 Palmer Avenue Falmouth, MA 02540 Dear Mr. Driscoll: I have received the petition of Nathaniel Trumbull appealing the response of the Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2023, Mr. Trumbull requested the following: 1. All correspondence, either by email or by text messages (including SSA- owned as well as privately owned cell phones), between Steamship Authority employees and the public, including freight carriers and other clients of the SSA, concerning the public hearing held on May 5, 2023. 2. All correspondence, either written by email or by text messages (including SSA-owned as well as privately owned cell phones), between [two named individuals] concerning the public hearing held on May 5, 2023. The Authority responded on May 23, 2023, providing responsive records in redacted form. Unsatisfied with the Authority’s response, Mr. Trumbull 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). 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

Sean F. Driscoll SPR23/1189 Page 2 June 20, 2023 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 Authority’s May 23rd Response In its May 23, 2023 response, the Authority states that it has “identified two (2) text messages that are responsive to your request.” The Authority also states that “portions of those texts that are personal in nature have been removed from the response.” In an email to this office and Mr. Trumbull on June 5, 2023, the Authority further states the following: [T]he portions of the records Mr. Trumbull discusses were personal, nonwork messages that were nonresponsive to the matter being requested. Furthermore, they were taken from the employee’s personal phone. As the responsive records were screenshots of the text threads from the employee’s personal phone, there was no other practical way to remove the information other than to redact it in this manner. Burden of Specificity The Authority is advised that under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption for withholding or redacting records. Based on the Authority’s response, it is unclear which exemption of the Public Records Law the Authority is citing in order to redact the text messages, and how such an exemption would apply to the redacted information. The Authority must clarify these matters. See G. L. c. 66, § 10(b)(iv) (a 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 Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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). Conclusion Accordingly, the Authority is ordered to provide Mr. Trumbull 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

Sean F. Driscoll SPR23/1189 Page 3 June 20, 2023 office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Trumbull