Walter Wuthmann v. Massachusetts Department of Transportation (SPR 20232479)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 2, 2023 SPR23/2479 Christopher Smith, Esq. Senior Lead Counsel, Corporate & Ethics Office of the General Counsel Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Smith: I have received the petition of Walter Wuthmann, of WBUR, appealing the response of the Department of Transportation (Department) 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. Wuthmann requested the following: [1.] A copy of the separation or severance agreement with [the] Massachusetts Secretary of Transportation .... [2.] A copy of any emails between [a named individual] and Gov. Maura Healey between Aug. 21-28. [3.] A copy of any text messages between [the individual] and Gov. Maura Healey between Aug. 21-28, on either personal or government phones. [4.] A copy of any emails between [the individual] and Chief of Staff ... between Aug. 21-28. [5.] A copy of any text messages between [the individual] and Chief of Staff ... between Aug. 21-28, on either personal or government phones. The Department responded on October 18, 2023, citing Exemptions (c) and (d) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(c), (d). Unsatisfied with the Department’s response, Mr. Wuthmann appealed, and this case 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 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

Christopher Smith, Esq. SPR23/2479 Page 2 November 2, 2023 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 Department’s October 18th Response In its October 18, 2023 response, the Department cites Exemption (c) of the Public Records Law for withholding a copy of the responsive agreement, cites Exemption (d) for withholding responsive emails, and further explains that the Department “does not have text messages responsive to this request.” See G. L. c. 4, § 7(26)(c), (d). 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).

Christopher Smith, Esq. SPR23/2479 Page 3 November 2, 2023 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. Under Exemption (c), the Department argues the following: [T]he agreement is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(c), as it is related to a personnel file and information that, if released, could affect MassDOT’s ability to function effectively as an employer and which may constitute an unwarranted invasion of personal privacy. Based on the Department’s response, it is unclear how the responsive agreement contains intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Department 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. PETA, 477 Mass. at 292. The Department must clarify these matters. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the Department argues the following: [T]he emails ... are exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(d), because they relate to policy positions being developed by MassDOT. In this case, the emails constitute inter agency

Christopher Smith, Esq. SPR23/2479 Page 4 November 2, 2023 memoranda discussing policy development, deliberation, and prioritization. The premature release of these records could taint this ongoing deliberative process. Based on the Department’s response, the Department has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, the Department did not demonstrate how disclosure of the records would taint the ongoing deliberative process. The Department must clarify this. Additionally, it is unclear whether the withheld records contain any factual information that can be segregated from the responsive records, as Exemption (d) does not apply to such information. 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 Department is ordered to provide Mr. Wuthmann with a response to his 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: Walter Wuthmann