Eunki Seonwoo v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (SPR 20232319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 13, 2023 SPR23/2319 Sean F. Driscoll Communications Director Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority 228 Palmer Avenue Falmouth, MA 02540 Dear Mr. Driscoll: I have received the petition of Eunki Seonwoo, of The Martha’s Vineyard Times, 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 August 30, 2023, Mr. Seonwoo requested “documents relating to the internal investigation of the M/V Sankaty breaking away from the Woods Hole Terminal dock, slip three, on Thursday, July 27, which includes an analysis or conclusions from the internal investigation[.]” On September 14, 2023, the Authority responded. Unsatisfied with the Authority’s response, Mr. Seonwoo petitioned this office and this appeal, SPR23/2319, was opened as a result. While this appeal was pending, the Authority provided a supplemental response dated October 11, 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 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 SPR23/2319 Page 2 October 13, 2023 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 September 14th Response In its September 14, 2023 response, the Authority states: We are fulfilling your request in part, although certain materials have been redacted pursuant to the Massachusetts Public Records Law, Mass. G.L. c. 4, § 7, clause 26th, and we are denying it in part. Our withholding of certain documents is influenced by the fact that the investigation of the subject incident concerned potential and eventual disciplinary actions involving our employees. See Wakefield Teachers Assoc. v. School Committee of Wakefield, 431 Mass. 792 (2000). Please be advised that the Authority cannot provide you with copies of any statements made by its employees (or copies of any memoranda, personal notes, investigation notes, e-mails, or other records of communications regarding any of our employees), as they would constitute part of each employee’s personnel file. Such files and information are confidential and exempt from disclosure pursuant to the provisions of Mass. G.L. c. 4, § 7, clause 26th (c), as interpreted by the Massachusetts Supreme Judicial Court in Wakefield Teachers Assoc. Further, to the extent that you seek any personal notes regarding any such communications that are personal to our employees and not maintained as part of an employee’s “personnel record,” as defined in Mass. G.L. c. 149, § 52C, they are also exempt from disclosure pursuant to the provisions of Mass. G.L. c. 4, § 7, clause 26th (e). This response should not be construed as implying that there are any such documents in existence with respect to the investigation that is the subject of your request. Accordingly, we are denying your request, in part, pursuant to the exemptions to the Massachusetts Public Records Law cited herein. We are also providing you with copies of the following documents in .pdf format that were reviewed during our investigation: [1] Fourteen (14) digital photographs taken after the incident; [2] Two (2) weather data sheets (detailing tides and wind); [3] Sections 3.7 and 3.8 of the Authority’s Terminal and Facilities Operations Manual; [4] Checklists C-02 and C-11 from the Authority’s Vessel Operations Manual; [5] Appendices A and B from the Authority’s Vessel Operations Manual;

Sean F. Driscoll SPR23/2319 Page 3 October 13, 2023 [6] Redacted Memorandum concerning “Tie-up – Standing Operating Procedures” dated December 13, 2021; [7] Line Handling Training Slides; [8] Redacted M/V SANKATY’s Deck Log from July 27, 2023; [9] Redacted email received by the undersigned concerning text message addressing report of subject incident sent to the United States Coast Guard on July 27, 2023; and [10] SQMS Alert No. 5, dated August 2, 2023, addressing “Vessel Line Handling and Securement.” In the Authority’s further response dated October 11, 2023, the Authority states: In Wakefield Teachers Assoc. v. School Committee of Wakefield, 431 Mass. 792 (2000), the Massachusetts Supreme Judicial Court held, in part, that “[i]nformation falling within the ‘personnel and medical files or information’ category is absolutely exempt from disclosure.” Here, the emails and statements requested for production pertain to individual employees that were potentially subject to disciplinary sanctions and should be “absolutely exempt from disclosure under the plain language of the statute.” To order otherwise would considerably hinder the Authority’s ability to obtain employees’ cooperation in the investigation of future work-related incidents and its “ability to function effectively as an employer.” As the Supreme Judicial Court noted in Wakefield Teachers Assoc., “[a]n assurance of confidentiality to those who voluntarily participate in such investigations likely produces candor.” Further, “[w]ere the [employee] concerned that his cooperation would result in public disclosure, we question whether his cooperation would have been as forthcoming.” Current Appeal In his appeal, Mr. Seonwoo states: I am sending this email to appeal the Steamship Authority’s decision not to release communication with employees regarding the Sankaty incident that took place on July 27, 2023, in their response to our public records request. The Steamship Authority is withholding this information under Exemption C, but there is no reason they cannot release emails with and statements from employees with redacted information and redacting employees’ identifying information. 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

Sean F. Driscoll SPR23/2319 Page 4 October 13, 2023 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., 391Mass. 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. 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). Although the Authority states it may withhold certain responsive records under Exemption (c), the Authority has not sufficiently explained its reasoning. It is unclear how all the records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is not clear from the Authority’s response, whether this information is available from other sources. The Authority must also clarify whether segregable portions of the records can be provided. See G. L. c. 66, §

Sean F. Driscoll SPR23/2319 Page 5 October 13, 2023 10(a); See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Authority is ordered to provide Mr. Seonwoo with a response to the 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 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: Eunki Seonwoo Terence G. Kenneally, Esq.