Paul Budge v. Massachusetts Bay Transportation Authority (SPR 20242298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 27, 2024 SPR24/2298 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 Attorney Paul Budge, of Altman, Nussbaum, Shunnarah Trial Attorneys, on behalf of Makita Myers, 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 August 2, 2024, Attorney Budge requested the “MBTA Police Report for a MVA involving a MBTA bus on 07/29/2024. The crash happened at 3:40 p.m. in the area of Boylston Street and Chestnut Hill Avenue.” The MBTA responded on August 13, 2024, providing a record in redacted form, and claiming that the redacted information is 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, Attorney Budge petitioned this office, and this appeal, SPR24/2298, was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, neither Attorney Budge’s status, nor that of his client, will play any role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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. SPR24/2298 Page 2 August 27, 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 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 13th Response In its August 13, 2024 response, the MBTA provides one responsive incident report, and cites Exemption (c) of the Public Records Law for redacting the responsive record. 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). 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).

Julie Ciollo, Esq. SPR24/2298 Page 3 August 27, 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 August 13th response, under Exemption (c), the MBTA argues the following: [The] public records request seeks information that is exempt from disclosure under Massachusetts General Laws Chapter 4, Section 7(26) (c), which exempts materials or data “relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy”. The 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, license numbers and social security numbers of named individuals have been redacted from this document. To the extent that this information falls under the definition of “personal information” under M.G.L. c. 93H and 201 CMR 17.00, it must be redacted. In addition, the disclosure of personal data is prohibited by the federal Fair Information Practices Act and Massachusetts General Laws, Chapter 66, Section 2(c) which states, in part, that every holder maintaining personal data shall “not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter...” Based on its August 13th response, where the MBTA has redacted license numbers and social security numbers from the responsive record, I find the MBTA has met its burden to redact such information pursuant to Exemption (c). However, based on the MBTA’s response, it is unclear how the remaining redacted information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the redacted information is available from other sources. PETA, 477 Mass. at 292. Also, the MBTA did not provide additional information with respect to the

Julie Ciollo, Esq. SPR24/2298 Page 4 August 27, 2024 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 these matters. Conclusion Accordingly, the MBTA is ordered to provide Attorney Budge 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: Paul Budge, Esq.