Christopher Calnan v. Massachusetts Bay Transportation Authority (SPR 20240592)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2024 SPR24/0592 Julie Ciollo, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Christopher Calnan 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 26, 2023, Mr. Calnan requested “any and all lists of Transit Police employee exit interviews and the interviews themselves, whether redacted of sensitive personal information or not.” Previous Appeal and Petition This request was the subject of a previous petition from the MBTA and an appeal from Mr. Calnan. See SPR23/1828 Determination of the Supervisor of Records (August 14, 2023) and SPR23/3114 Determination of the Supervisor of Records (January 11, 2024). In my January 11th determination, I ordered the MBTA to provide a further response to Mr. Calnan. Subsequently, the MBTA responded on January 12, 2024. Unsatisfied with the MBTA’s response, Mr. Calnan further 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 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 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. SPR24/0592 Page 2 March 8, 2024 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. Current Appeal In his appeal petition, Mr. Calnan contends that “the date of a public record’s creation itself is a foundational data point and public information matter. Creation dates themselves do not reveal any personal information. Also, a record absent a creation date loses its value since such information provides the recipient with crucial context and the ability to verify authenticity.” The MBTA’s January 12th Response In its January 12, 2024 response, the MBTA cites Exemption (c) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(c). 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).

Julie Ciollo, Esq. SPR24/0592 Page 3 March 8, 2024 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. In its January 12th response, under Exemption (c), the MBTA argues the following: The exit interview dates are the last dates of employment for the individuals who completed them. Those dates, if publicly revealed, could be used to reveal who the interviewee is by matching names to dates in other MBTA records concerning employee turnover. This would likely lead to the indirect identification of the subject individuals. This is the “unwarranted invasion of personal privacy” that is expressly protected against under Exemption (c). . . . In this case, the exit interview dates, if revealed, would result in personal embarrassment to an individual of normal sensibilities by opening them up to indirect identification. The information contained in the exit interviews relates to an intimate detail of a highly personal nature – in this case, reputation. Further, the information is not available from any other source. For these reasons, the public interest in obtaining the ... exit interview dates does not substantially outweigh the seriousness of the resulting invasion of privacy from disclosing the records with the dates visible. Next, the exit interviews relate to an evaluation of an MBTA’s employee’s job performance. Revealing dates which would open up the interviewees to indirect identification would result in personal embarrassment to an individual of normal sensibilities. The interview details relate to an intimate detail of a highly personal nature – in this case, a public employee’s work appraisal. Further, this information is not available from any other source. For these reasons, the public interest in obtaining the exit interview dates does not substantially outweigh the seriousness of the resulting invasion of privacy from disclosing that information.

Julie Ciollo, Esq. SPR24/0592 Page 4 March 8, 2024 Based on the MBTA’s response, I find the MBTA has not met its burden in redacting the records under Exemption (c). Specifically, the MBTA has not met its burden to show how the privacy interests involved in the redacted information outweigh the public interest in disclosure. PETA, 477 Mass. at 292. Additionally, based on the MBTA’s January 12th response, and the redacted records provided by the MBTA, it is unclear whether some of the responsive records may constitute “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Consequently, it is uncertain how this exemption may be applied to redact all of the responsive exit interviews. The MBTA must clarify this. Conclusion Accordingly, the MBTA is ordered to provide Mr. Calnan 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. Sincerely, Manza Arthur Supervisor of Records cc: Christopher Calnan