Michael Dlott v. Massachusetts Bay Transportation Authority (SPR 20242913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 5, 2024 SPR24/2913 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Michael Dlott, Esq. appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 26, 2024, Attorney Dlott sought the following records in two separate requests: [1] On my [sic] 18th 2022 at park street station [an identified individual] fell off the third rail and was electrocuted. We are requesting any videos of [the individual] walking to being near or falling off the platform onto the third rail[;] [2] Any incident report regarding the death of [an identified individual] . . . on May 14th 2022 at Park street station 123 Tremont Street Boston MA. Previous Appeals These requests were the subject of previous appeals. See SPR24/2458 Determination of the Supervisor of Records (September 10, 2024) and SPR24/2459 Determination of the Supervisor of Records (September 10, 2024). In my September 10th determinations, I ordered the MBTA to clarify its claims under Exemption (f) to withhold records responsive to both requests. Subsequently, the MBTA responded to both requests on October 23, 2024, citing Exemptions (c) and (f) for withholding the responsive records. Unsatisfied with the MBTA’s response, Attorney Dlott petitioned this office and this appeal, SPR24/2913, 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 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 A. Ciollo, Esq. SPR24/2913 Page 2 November 5, 2024 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. See 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 Dlott asserts, “[w]ith respect to Exemption [(f)] this is duplicative of the previous response that was found non compliant and adds no additional information.” Attorney Dlott further states that the MBTA’s claim of Exemption (c), “is inappropriate as the subject of the incident is deceased and has no privacy concerns” while noting that the subject’s family, “who may have concerns is seeking this information.” He further argues, “[h]ere public interest in finding out the reason for a pass[e]nger’s death relates to the safety of the riding public, here the privacy concerns of a dead man should not form the basis of denying his estate the right to know how he died. . .” The MBTA’s October 23rd response In its October 23, 2024 response to both of Attorney Dlott’s requests, the MBTA denied the request in its entirety under Exemptions (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (f). Exemption (c) Exemption (c) permits the withholding of: 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).

Julie A. Ciollo, Esq. SPR24/2913 Page 3 November 5, 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. 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). 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. In its October 23rd response, under Exemption (c), the MBTA advises that Attorney Dlott’s “public records requests seek information that is exempt from disclosure under M.G.L. c. 4, § 7(26)(c) . . .” and explains that, “[d]ue to the nature of the events described in the Report and depicted in the Video, the MBTA has determined that the public interest in the release of this personal information does not outweigh the privacy interests of the individual involved.” The MBTA further states, “. . . this specific case . . . involves the death of an individual” and argues that for this reason “the privacy interest is not substantially outweighed by the public interest served in obtaining the requested materials that includes medical information.” Additionally, the MBTA contends that, “[d]ue to familiarity with the incident, redaction is insufficient to protect medical information of any individuals referenced in the responsive records.”

Julie A. Ciollo, Esq. SPR24/2913 Page 4 November 5, 2024 To the extent that the records contain medical information of a specifically named individual, the MBTA may permissibly withhold such portions from disclosure. However, the MBTA has not demonstrated that the recording and incident report responsive to Attorney Dlott’s requests, in their entirety, contain intimate details of a highly personal nature or that the disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the records are available from other sources. PETA, 477 Mass. at 292. Also, the MBTA did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Further, the MBTA must clarify whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The MBTA must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its October 23rd response, the MBTA reiterates the same portion of its previous August 28, 2024 responses for withholding the responsive records pursuant to Exemption (f). The MBTA advises: The investigation into the subject incident remains open. Disclosing the records sought prior to the investigation’s conclusion is likely to harm the ongoing investigation efforts by the MBTA and/or other investigative entities by hindering

Julie A. Ciollo, Esq. SPR24/2913 Page 5 November 5, 2024 investigative efforts by revealing potential leads, or lead to interim conclusions that may change based on additional facts that are gathered over the course of the ongoing investigation. Although the MBTA continues to claim it has an open investigation regarding the requested records, it is remains unclear how the recording and incident report responsive to Attorney Dlott’s requests, in their entirety, can be withheld under Exemption (f). Additionally, the MBTA’s October 23rd response to both requests did not provide supporting information on how the investigative process is ongoing. Nor has the MBTA demonstrated how disclosure of the information or any segregable portion thereof, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). The MBTA must clarify whether segregable portions of the records can be provided. See G. L. c. 66, § 10(a); See Reinstein, 378 Mass. at 289-90. Conclusion Accordingly, the MBTA is ordered to provide Attorney Dlott with a response to his requests, 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. Attorney Dlott may appeal the substantive nature of the MBTA’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Dlott, Esq.