Barbara D. Connly v. Massachusetts Port Authority (SPR 20232477)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 2, 2023 SPR23/2477 Christina Gibson Record Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. Gibson: I have received the petition of Barbara Connly, Esq., of Dolan Connly, P.C., appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 8, 2023, Attorney Connly requested “…any and all Incident Reports, Massport Police Reports, accident or investigative reports, witness statements, notes, call logs, and all documents pertaining to [an identified individual].” On October 17, 2023, the Authority responded, providing responsive records redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Authority’s response, Attorney Connly petitioned this office and this appeal, SPR23/2477, 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). 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. 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

Christina Gibson SPR23/2477 Page 2 November 2, 2023 The Authority’s October 17th response In its October 17, 2023 response, the Authority provided responsive records with redactions and stated the following: Employee Identification numbers have been redacted pursuant to Title 49 Code of Federal Regulations Parts 15 and 1520, et seq., which state that an airport operator such as Massport is prohibited from disclosing information and/or records constituting Sensitive Security Information (“SSI”) relative to the security operations at Massport’s Logan International Airport, as the disclosure of such information is likely to jeopardize public safety. Pursuant to Mass. Gen. Laws Ch. 4 §7(26)(a) and §7(26)(c) and in compliance with the following statutes and applicable regulations, any and all protected personnel and medical information, and other personal identifying data pertaining to third parties are redacted from the documents produced: (i) the Massachusetts Data Protection Statute (G.L. c. 93H); (ii) the Massachusetts Right of Privacy statute (G.L. c. 2l4, §1B); and/or the Massachusetts Fair Information Practices Act (“FIPA”). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Christina Gibson SPR23/2477 Page 3 November 2, 2023 Although the Authority cites a federal regulation and other state statutes, it remains unclear how the regulation or statutes specifically or by necessary implication permit the Authority to redact the responsive records. Please be advised that for Exemption (a) to apply, said statute or regulation must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Authority must clarify this matter. Fair Information Practices Act (FIPA) The Authority is reminded that FIPA and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. 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 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

Christina Gibson SPR23/2477 Page 4 November 2, 2023 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. Based on the Authority’s response, it is unclear what type of personal information has been redacted from the records, or how the information constitutes intimate details of a highly personal nature. Further, it is not clear from the response how disclosure would result in personal embarrassment to an individual of normal sensibilities or whether any of the information is available from other sources. PETA, 477 Mass. at 292. Additionally, the Authority did not provide information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the Authority did not satisfy its burden of specificity in redacting portions of the records under Exemptions (a) and (c) of the Public Records Law. Conclusion Accordingly, the Authority is ordered to provide Attorney Connly with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Attorney Connly may appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Barbara Connly, Esq.