Christopher Calnan v. Massachusetts Bay Transportation Authority (SPR 20241409)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2024 SPR24/1409 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, of Cambridge Day, 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 Petition and Appeals This request was the subject of a previous petition from the MBTA and appeals from Mr. Calnan. See SPR23/1828 Determination of the Supervisor of Records (August 14, 2023); SPR23/3114 Determination of the Supervisor of Records (January 11, 2024); SPR24/0592 Determination of the Supervisor of Records (March 8, 2024); and SPR24/0812 Determination of the Supervisor of Records (April 1, 2024). In my April 1st determination, I ordered the MBTA to provide a supplemental response to Mr. Calnan. Following further correspondence between Mr. Calnan and the MBTA, the MBTA responded on April 12, 2024, providing the responsive records in redacted form and claiming the redacted portions are exempt from disclosure under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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 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. SPR24/1409 Page 2 May 23, 2024 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. 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. Fee Waivers In his appeal petition, Mr. Calnan requests that “the MBTA reimburse the $487 Cambridge Day provided with the understanding that the MBTA would provide the records in a timely manner, which has not occurred nearly a year later.” G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). The MBTA’s April 12th and March 13th Responses In its April 12, 2024 and March 13, 2024 responses, the MBTA cites Exemption (c) of the Public Records Law for redacting the dates from the responsive records. See G. L. c. 4, § 7(26)(c).

Julie Ciollo, Esq. SPR24/1409 Page 3 May 23, 2024 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). Medical information that is of a personal nature and relates to a specifically named individual may be 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. Globe Newspaper Co., 338 Mass. 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. Exam’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 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

Julie Ciollo, Esq. SPR24/1409 Page 4 May 23, 2024 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 March 13th response, under Exemption (c), the MBTA argues the following: [T]he redaction of the exit interview dates protects the identity of the individuals who provided candid workplace assessments. While the public may be interested in what those assessments are (and they have been provided to the fullest extent allowable under the Public Records Law), the public interest in the identity of the officers who provided those opinions are outweighed by the officers’ privacy interests in remaining anonymous. As set forth in the MBTA’s prior response, disclosure would result in personal embarrassment to an individual of normal sensibilities (officers who offered their assessments with an expectation of privacy); the materials sought contain intimate details of a highly personal nature (i.e. reputation and workplace assessment); and the same information is not available from other sources. Redacting the dates balances providing the exit interview responses while protecting the identity of the interviewee. Anyone who received the exit interviews with visible dates would only need to request that the MBTA produce a list of Transit Police separations from the same time period and match the exit interview dates to the separation dates. At that point, the identity of the Transit Police interviewees would be known and an unwarranted invasion of privacy would occur. In its March 13th response, the MBTA also confirmed that “the records are not ‘records related to a law enforcement misconduct investigation.’” In its April 12th response, the MBTA provides the month and year of all but two of the dates in question, and explains the following: The exit interviews, with two exceptions, have the month and year of the interview visible. Because two of the interviewees were the only Transit Police employees to separate from the MBTA in their respective month and year, their exit interviews have the year visible with the month and date redacted. The MBTA has taken this step in order to safegard the privacy interests of those individuals. This is especially important where one individual identified a medical status/information within their interview responses. As we stated in a prior response, a request for a list of Transit Police separations with dates would allow for easy identification of those individuals. Based on the information provided in the MBTA’s responses, where one of the records was redacted in order to protect the personal medical information of a specifically named individual, I find that the MBTA has met its burden to redact that specific record. However, based on its responses, I find that the MBTA has not met its burden to demonstrate that the other exit interviews may be redacted under Exemption (c) in order to

Julie Ciollo, Esq. SPR24/1409 Page 5 May 23, 2024 protect the identity of the interviewees. Specifically, the MBTA has not demonstrated how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Additionally, the MBTA has not demonstrated that the public interest in obtaining the requested information outweighs the privacy interests of the interviewed officers. PETA, 477 Mass. at 292. 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