Jonathan A. Karon, Esq. v. Massachusetts Bay Transportation Authority (SPR 20232819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2023 SPR23/2819 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Attorney Jonathan A. Karon 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 July 11, 2023, Attorney Karon requested “[a]ny and all records pertaining to any investigation into an incident occurring on or about January 27, 2023 when [a named individual] was injured when trapped under an MBTA green line train on the B line in the vicinity of the Boston University Central stop…” Prior Appeal This request was the subject of a prior appeal. See SPR23/1802 Determination of the Supervisor of Records (August 16, 2023). In my August 16th determination, I found that the MBTA did not meet its burden to withhold records under Exemption (f). The MBTA provided a response on August 30, 2023. Unsatisfied with the response, Attorney Karon petitioned this office and this appeal, SPR23/2819, 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). 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 Ciollo, Esq. SPR23/2819 Page 2 December 5, 2023 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 30th Response In its August 30, 2023 response, the MBTA cited Exemptions (a) and (c) of the Public Records Law to redact records. 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.

Julie Ciollo, Esq. SPR23/2819 Page 3 December 5, 2023 Fair Information Practices Act (FIPA) Under Exemption (a) and FIPA, the MBTA argues that “. . . the disclosure of personal data is prohibited by the federal Fair Information Practices Act and Massachusetts General Laws…” Please be advised 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) 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Examn’r, 404 Mass. 132, 135 (1987). 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

Julie Ciollo, Esq. SPR23/2819 Page 4 December 5, 2023 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. Under Exemption (c), the MBTA states, “[t]he MBTA has determined that the public interest in the release of this personal information does not outweigh the privacy interests of the individual(s) involved. Specifically, social security numbers, phone numbers, addresses and medical condition information of named individuals have been redacted from this document. To the extent that the redacted portions contain medical information of a specifically named individual, personal phone numbers, and social security numbers, the MBTA may permissibly withhold those portions from disclosure. However, it is unclear how the addresses constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. Also, the MBTA did not provide additional 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. The MBTA must clarify this matter. Additional records In his appeal, Attorney Karon asserts, “[the MBTA] e-mailed a copy of one highly redacted MBTA Police Report to me, with boilerplate language regarding the redaction of personal identifying information… My investigation… has revealed that the MBTA is, in fact, in possession of numerous public records within the scope of my request, which it has not identified…” In light of Attorney Karon’s appeal, it is unclear if the MBTA possesses additional records that may be responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that responsive records exist, I find the MBTA must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b).

Julie Ciollo, Esq. SPR23/2819 Page 5 December 5, 2023 Conclusion Accordingly, the MBTA is ordered to provide Attorney Karon 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: Jonathan A. Karon, Esq.