Andrea Estes v. Massachusetts Bay Transportation Authority (SPR 20231596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2023 SPR23/1596 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Andrea Estes appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 7, 2023, Ms. Estes requested the following records: [1.] ... copies of emails from or to [named persons] from or to ... during April and May 2023 ... [2.] ... emails between [named persons] during April and May 2023. Subsequently, Ms. Estes modified her request for “...only emails from May 2023 and only ones that included a mention of the Boston Globe or me.” Previous appeal This request was the subject of a previous appeal. See SPR22/1529 Determination of the Supervisor of Records (July 11, 2023). The MBTA responded on July 11, 2023. Unsatisfied with the MBTA’s response, Ms. Estes petitioned this office and this appeal, SPR23/1596, 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

Julie A. Ciollo, Esq. SPR23/1596 Page 2 July 19, 2023 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. 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 MBTA’s July 11th Response In its July 11, 2023 response, the MBTA stated, “[f]irst, to clarify, on May 17, 2023, you restricted your request to emails from April 2023 and stated, ‘Also, if it would narrow the request further, we could add keyword ‘Globe’ or ‘Boston Globe’. In your appeal, you state, ‘I narrowed the request to include only emails from May 2023 and only ones that included a mention of the Boston Globe or me.’ This contradicts your stated request parameters. If what you state in your appeal is correct, then the emails provided to you on June 30, 2023 are not responsive to your request. If your May 17th clarification was correct, then I refer you back to the June 30th response in which the MBTA identified the basis for redactions made to the provided emails.” The MBTA cited Exemption (c) to withhold the requested records in its entirety. Exemption (c) Exemption (c) permits the withholding of: 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. 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).

Julie A. Ciollo, Esq. SPR23/1596 Page 3 July 19, 2023 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 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). 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. In its response, the MBTA asserted: [T]he MBTA is withholding release of certain records as they are exempt from disclosure pursuant to the first clause of Massachusetts General Laws ch. 4, sec. 7, clause 26 (c), personnel and medical files and information. Massachusetts courts have consistently determined that personnel file information includes, at a minimum, employment applications, employee evaluations, disciplinary documentation, and promotion, demotion or termination information pertaining to a particular employee. 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). Further, the Massachusetts Supreme Judicial Court has determined that exempting personnel information from disclosure serves to protect the government’s ability to function effectively as an employer and that the release of certain personnel information could disrupt the government’s capability to conduct sensitive and careful investigations involving employees. See, Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792 (2000). Specifically, records responsive to this request include personnel information concerning MBTA employees and are therefore protected from disclosure.

Julie A. Ciollo, Esq. SPR23/1596 Page 4 July 19, 2023 In camera inspection In order to facilitate a determination as to the applicability of the MBTA’s claims to withhold the records pursuant to Exemption (c) of the Public Records Law, the MBTA must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts 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. Order Accordingly, the MBTA is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Andrea Estes