Paul Budge v. Massachusetts Bay Transportation Authority (SPR 20242567)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2024 SPR24/2567 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.” Previous Appeal This request was the subject of a previous appeal. See SPR24/2298 Determination of the Supervisor of Records (August 27, 2024). In my August 27th determination, I found that the MBTA did not meet its burden to redact the responsive record under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Subsequently, the MBTA responded on September 11, 2024. Unsatisfied with the MBTA’s response, Attorney Budge petitioned this office, and this appeal, SPR24/2567, 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). 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. SPR24/2567 Page 2 September 25, 2024 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. Current Appeal In his appeal petition, Attorney Budge argues, among other things, the following: I have no issue with you refusing to not release the license numbers and SSN’s, that is not what I am interested in here. I am seeking my client’s medical information (i.e. the name of the EMS carrier that transported here) as well as the portion(s) of the report addressing the type of medical emergency that the Defendant ... allegedly experienced prior to this MVA. As to my client’s own medical information on the report, there is simply no good faith argument that releasing this information to her counsel would cause “personal embarrassment.” Thus, given that all three requirements of M.G.L. c. 4, § 7(26)(c) (“Exemption (c)”) must be met in order to prohibit disclosure, and the personal embarrassment test is clearly not met, I maintain that I am entitled to this information. . . . I believe [the MBTA’s] arguments are insufficient to justify not releasing the portion(s) of the report addressing the type of medical emergency that the Defendant ... allegedly experienced prior to this MVA. Upon review of the appeal petition, it appears Attorney Budge objects only to the redactions of medical information from the responsive record. Status of the Requestor Please be advised, 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.

Julie Ciollo, Esq. SPR24/2567 Page 3 September 25, 2024 It is unclear if Attorney Budge may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Attorney Budge a greater right of access to the responsive records. The MBTA’s September 11th Response In its September 11, 2024 response, the MBTA refers to the responsive incident report previously provided in redacted form, and states that “the MBTA continues to withhold information that describes medical conditions and care of individuals involved in the incident described in the Report.” 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). 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

Julie Ciollo, Esq. SPR24/2567 Page 4 September 25, 2024 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 September 11th response, under Exemption (c), the MBTA argues the following: Applying this [Exemption (c)] analysis to this specific case, the privacy interest is not substantially outweighed by any public interest served in obtaining the redacted medical information. There is, in fact, no public interest that would be served by releasing medical information. You are seeking the redacted information to advance an individual’s private legal action. Further, the personal information you seek identifies private individuals. The request is not to ensure public servants are properly fulfilling their obligations properly, or some other acceptable public interests. The release of the identifying information contained in the Report could result in personal embarrassment. Individuals of ordinary sensibilities, in particular individuals who are not employees of the Commonwealth, would likely be embarrassed if it were publicly disclosed that they were in an automobile accident. That embarrassment may be exacerbated by (1) the fact that the accident involved an object as large and visible as an MBTA bus and (2) that the accident involved law enforcement and the document they are identified in is a police report. Further, due to familiarity with the incident, redaction is insufficient to protect medical information of any individuals referenced in the responsive record. Based on the MBTA’s September 11th response, where the MBTA has explained that it redacted medical information related to specifically named individuals, I find that the MBTA has met its burden to redact such information pursuant to Exemption (c) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Budge is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Paul Budge, Esq.