Nathaniel Trumbull v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (SPR 20231560)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2023 SPR23/1560 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/1189 Determination of the Supervisor of Records (June 20, 2023). In my June 20th determination, I ordered the Authority to clarify what exemption of the Public Records Law it was citing in order to redact the records, and how such an exemption would apply to the redacted information. Subsequently, the Authority responded on June 30, 2023, citing Exemption (c). See G. L. c. 4, § 7(26)(c). Unsatisfied with the Authority’s response, Mr. Trumbull appealed, and this case was opened as a result. 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 SPR23/1560 Page 2 July 20, 2023 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. 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 June 30th Response In its June 30, 2023 response, the Authority cites Exemption (c) of the Public Records Law for redacting two text messages identified in the Authority’s May 23, 2023 response. 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). 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. 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

Sean F. Driscoll SPR23/1560 Page 3 July 20, 2023 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. In its June 30th response, under Exemption (c), the Authority argues “that an individual’s private text messages from a personal cell phone that do not involve matters related to the activities of the Steamship Authority constitute an “intimate detail” and that, furthermore, the public interest in disclosure does not outweigh the privacy interest associated with disclosure.” The Authority goes on to state that it has “removed those portions of the records that are not responsive to [Mr. Trumbull’s] request.” In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the Authority to redact records, the Authority must provide this office with an un- redacted copy of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Authority’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Sean F. Driscoll SPR23/1560 Page 4 July 20, 2023 Order Accordingly, the Authority is ordered to provide this office with an un-redacted copy of the records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Trumbull