Walter Wuthmann v. Massachusetts Department of Transportation (SPR 20232851)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2023 SPR23/2851 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/2479 Determination of the Supervisor of Records (November 2, 2023). In my November 2nd determination, I ordered the Department to clarify its claims under Exemptions (c) and (d) for withholding responsive records. Subsequently, the Department responded on November 21, 2023. Unsatisfied with the Department’s response, Mr. Wuthmann further appealed, and this case was opened as a result. 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. SPR23/2851 Page 2 December 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 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 November 21st Response In its November 21, 2023 response, the Department reiterates its claims under Exemptions (c) and (d) for withholding responsive records. 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). 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).

Christopher Smith, Esq. SPR23/2851 Page 3 December 11, 2023 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 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. Regarding Part 1 of the request, in its November 21st response, under Exemption (c), the Department argues the following: Please be advised that the agreement is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26)(c) (“Exemption (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. Specifically, the record in question consists almost entirely of “core personnel information” exempt from disclosure under Exemption (c). ... In addition, none of the information in the letter is subject to mandatory disclosure as payroll records, settlement payments, or other financial disbursements. ... Release of the record could inhibit MassDOT’s ability to function as an employer because of the withheld information’s “manifest usefulness in making employment decisions.” ... The withheld information is, therefore, “entitled to be withheld from mandatory disclosure.”... Further, the release of this information would constitute an unwarranted invasion of personal privacy. ... While there may be some public interest in a cabinet secretary’s departure from the role, that interest does not outweigh the privacy interest a person has in the terms on which they make such a change. The public interest served by the Public Records Law is “knowing whether public servants are carrying out their duties in a law-abiding and efficient manner.” [PETA], at 292. The information withheld deals with the terms on which a public servant will leave her position, not how she carried out her duties leading up to

Christopher Smith, Esq. SPR23/2851 Page 4 December 11, 2023 her departure. Further, the information falls squarely in those categories clearly identified in case law as exempt from disclosure and does not include such information that case law identifies as clearly within the public interest. Therefore, the public interest in the withheld information does not weigh heavily in favor of disclosure. Against that public interest, we must also analyze “three factors to assess 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.” Id. The privacy interest in question heavily outweighs the public interest. The terms on which a person leaves employment, even in a high profile position, are the type of information most people would want and expect to be private. This is especially true when standard representations are made that, if misconstrued and taken out of context without sufficient additional facts, could be used to drive a particular narrative if other details are assumed by the public or media. The decision of how and when to end one’s employment with a particular organization is highly personal and intimate, especially given a person’s career can be an important part of their identity. Finally, the information being withheld would not be available from other publicly available sources. The only information that could be gleaned from other sources is the fact that [the named individual] left her position as Secretary of MassDOT. The public availability of this information, however, allowed for the request to be made in the first place. Therefore, the public interest in that information is not frustrated by the withholding of exempt information. Therefore, the privacy interest in the withheld information heavily outweighs the public interest in obtaining the information. 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

Christopher Smith, Esq. SPR23/2851 Page 5 December 11, 2023 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). Regarding Parts 2 through 5 of the request, in its November 21st response, under Exemption (d), the Department argues the following: With respect to the emails [Mr. Wuthmann] requested [they] 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 memoranda between MassDOT and the Governor’s office and reflect internal ordering of ongoing policy priorities. The emails discuss and introduce policy topics for consideration, development, and prioritization. The premature release of these records could taint this ongoing deliberative process. Specifically, these emails contain policy topics and communications strategies to be deliberated, some at the earliest phase of consideration. To release these materials prior to final policy determinations could create false expectations for the public, in particular with respect to policy matters that have not been fully vetted or developed into a complete proposal. The emails do not constitute “reasonably complete factual studies.” Rather, the emails are only a small part of the policy development process and only contain portions of the information related to the relevant policy development. Release of this information at this time could be misleading without the full context and information that will ultimately go into these matters. Such necessary additional information is not contained in these emails. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (d) claims made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Christopher Smith, Esq. SPR23/2851 Page 6 December 11, 2023 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Walter Wuthmann