Joseph Dwinell v. Massachusetts Convention Center Authority (SPR 20241829)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2024 SPR24/1829 Jeannemarie Joyce, Esq. Assistant General Counsel Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Attorney Joyce: I have received the petition of Joe Dwinell, of the Boston Herald, appealing the response of the Massachusetts Convention Center Authority (Authority/MCCA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 28, 2024, Mr. Dwinell requested, “…all expenditures and reimbursements made by the Convention Center to and for [a named individual] during his time with [the Authority]… Also, any and all other expenditures and reimbursements not listed and his annual salary and any and all overtime or bonus pay or reimbursement payments.” The Authority provided the response on June 11, 2024. Unsatisfied with the Authority’s response, Mr. Dwinell petitioned this office and this appeal, SPR24/1829, was opened as a result. While this appeal was pending, the Authority provided a supplemental response on July 1, 2024. 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 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

Jeannemarie Joyce, Esq. SPR24/1829 Page 2 July 8, 2024 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 Authority’s Responses In its June 11, 2024 response, the Authority stated, “[t]he MCCA is in the process of collecting and reviewing records in connection with your request. We anticipate being in position to provide [Mr. Dwinell] with any responsive documents that are not exempt from disclosure no later than June 18, 2024. The MCCA does not anticipate charging any fees in connection with its response to this request.” Subsequent to the opening of this appeal, on July 1, 2024, the Authority sent a response and cited Exemption (c) of the Public Records Law to withhold responsive records. Current Appeal In his appeal, Mr. Dwinell states, “I was asked to wait and I waited and now no one will address this request. I have attempted to explain that this is a public matter, but that has not resulted in any records. I am appealing this denial and lack of transparency.” In response to the Authority’s July 1st email, Mr. Dwinell states, “[m]y response is the lack of transparency is appalling. Taxpayers are footing the bill and deserve to know where and how their money is spent. Period.” 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.

Jeannemarie Joyce, Esq. SPR24/1829 Page 3 July 8, 2024 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). 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 Authority stated, “[the Authority] has identified documents that may be responsive to the underlying records request, including records related to expense reimbursements submitted by [a named individual]. [The Authority] is withholding these records, however, because the documents are relevant to an ongoing personnel matter… In addition, while the matter is pending, the documents are also ‘other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’” Although the Authority indicates that the records “. . . are relevant to an ongoing personnel matter,” it is unclear how the records constitute one of the core categories of personnel information that is useful in making employment decisions regarding an employee. It is additionally uncertain how the withheld records, in their entirety, contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Authority did not provide additional information with respect to the balancing test which examines whether the public

Jeannemarie Joyce, Esq. SPR24/1829 Page 4 July 8, 2024 interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Authority must clarify these matters. In addition, the Authority did not identify the records it possesses that are responsive to the request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the Authority must identify the records it withheld under Exemption (c). As a result, I find that the Authority did not meet its burden of specificity in withholding the records, in their entirety, under Exemption (c) of the Public Records Law. Conclusion Accordingly, the Authority is ordered to provide Mr. Dwinell 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 the 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. Mr. Dwinell may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joe Dwinell