Andrea Estes v. Massachusetts Bay Transportation Authority (SPR 20232001)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2023 SPR23/2001 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 appeals and in camera review This request was the subject of previous appeals and a subsequent in camera review. See SPR22/1529 Determination of the Supervisor of Records (July 11, 2023) and SPR23/1596 Determinations of the Supervisor of Records (July 19, 2023 and August 15, 2023). The MBTA responded on August 24, 2023. Unsatisfied with the MBTA’s response, Ms. Estes petitioned this office and this appeal, SPR23/2001, 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 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. SPR23/2001 Page 2 September 8, 2023 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. 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 August 24th Response In its August 24, 2023 response, the MBTA cited Exemption (c) in support of the redactions made to the requested records. 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). 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 A. Ciollo, Esq. SPR23/2001 Page 3 September 8, 2023 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 that the “... [it] redacted portions of the email that contained personnel information, citing Exemption (c) to the Public Records Law. In so doing, the MBTA determined that the privacy interests at stake for the specific named individuals outweighed any potential public interest in the redacted information. The MBTA arrived at this determination after considering three factors. First, disclosure would result in personal embarrassment to an individual of normal sensibilities. The email contains discussions of the reasons why certain named individuals separated from or remained employed by the MBTA. Disclosing this personal information would constitute an unwarranted invasion of privacy. Second, the redacted portion of the email contains intimate details of a highly personal nature, namely, the reputations of the named individuals. Given the scrutiny placed on these individuals via the highly publicized news article that you authored for the Boston Globe in April 2023, release of intimate details concerning their employment status could needlessly affect their reputations. Lastly, the information contained in the redacted portion of the email is not available from other sources.” The MBTA also stated, “[g]iven the above factors, the information contained in the redacted portion of the email merits protection under Exemption (c). See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The public interest in obtaining the requested information does not substantially outweigh the seriousness of any invasion of privacy. PETA, 477 Mass. at 291.” Upon review of the balancing test, I find the MBTA has not demonstrated how the privacy interests of the individuals substantially outweigh the public interest in this situation. See id. at 291. As a result, I find the MBTA did not meet its burden of specificity in claiming Exemption (c) to withhold the responsive records from disclosure.

Julie A. Ciollo, Esq. SPR23/2001 Page 4 September 8, 2023 Order Accordingly, the MBTA is ordered to provide Ms. Estes with a response to the request 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 this response to this office at pre@sec.state.ma.us. Ms. Estes may appeal the substantive nature of the MBTA’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Andrea Estes