Boston Accountability Network v. Massachusetts Convention Center Authority (SPR 20232552)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2552 Christopher Donato, Esq. General Counsel Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Attorney Donato: I have received the petition of Boston Accountability Network appealing the response of the Massachusetts Convention Center Authority (MCCA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 10, 2023, the requestor sought “[c]opies of any and all non-disclosure agreements (NDAs) executed between the MCCA and former employees over the last 7 years, including NDA agreements with the MCCA directly and via agents on behalf of, including but not limited to, outside law firms and insurance companies.” The MCCA provided a response on October 23, 2023. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR23/2552, 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. 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. 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 Donato, Esq. SPR23/2552 Page 2 November 8, 2023 The MCCA’s October 23rd response In its October 23, 2023 response, the MCCA cited Exemption (c) of the Public Records Law to withhold the requested records. G. L. c. 4, § 7(26)(c). 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. 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).

Christopher Donato, Esq. SPR23/2552 Page 3 November 8, 2023 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. Citing Exemption (c), the MCCA states that “these settlement agreements with former MCCA employees that contain non-disclosure language are exempt from public records under the privacy exemption.” Based on the MCCA’s response, it is unclear how the requested records constitute one of the “core categories of personnel information that are ‘useful in making employment decisions regarding an employee.’” Further, the MCCA has not demonstrated that the records contain intimate details of a highly personal nature or that disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information contained in the records is available from other sources. PETA, 477 Mass. at 292. Also, the MCCA did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the records outweighs the seriousness of any invasion of privacy. The MCCA must clarify these issues. Conclusion Accordingly, the MCCA is ordered to provide the requestor with a response 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. Sincerely, Manza Arthur Supervisor of Records cc: Boston Accountability Network