Kiana M. Lucas-Yang v. Massachusetts Department of Transportation (SPR 20251705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2025 SPR25/1705 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Kiana Lucas appealing the response of the Massachusetts Department of Transportation (Department/MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 14, 2025, Ms. Lucas requested: [C]opies of all public records related to any internal complaints, allegations, investigations, personnel actions, settlements, or HR correspondence involving [an identified individual], former employee and [an identified individual] current employee of MassDOT and/or the Registry of Motor Vehicles, during the time period of January 1, 2007 through December 31, 2015. Specifically, I request records relating to: [1] Any sexual harassment or misconduct allegations, including inappropriate workplace conduct [2] Any disciplinary action, reassignment, resignation, or separation during or following such allegations [3] Any related communications between Human Resources, Labor Relations, or Legal Counsel [4] Any internal reports, memos, meeting minutes, or emails referencing [an identified individual] as well as [an identified individual] in relation to the above matters[.] Please include both substantiated and unsubstantiated claims, formal and informal complaints, and any settlements—whether internal or external—that reference [an identified individual] directly. 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

William J. Doyle, Esq. SPR25/1705 Page 2 June 27, 2025 The Department responded on May 30, 2025. Unsatisfied with the response, Ms. Lucas petitioned this office and this appeal, SPR25/1705, was opened as a result. Status of Requestor In her appeal petition, Ms. Lucas states, “I am the complainant in the matter at issue and therefore a direct participant in the records requested.” 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, Ms. Lucas’ status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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. Current Appeal In her appeal petition, Ms. Lucas states: [1] I am not a third-party requester seeking unrelated personnel file information. I am the complainant in the matter at issue and therefore a direct participant in the records requested. [2] The cited privacy exemption under § 7(26)(c) is intended to protect

William J. Doyle, Esq. SPR25/1705 Page 3 June 27, 2025 individuals from undue harm due to public disclosure. In this instance, the individuals named are already known to me, and the requested materials pertain to events I personally initiated and was involved in. [3] The agency has stated that redaction is not feasible due to identifiable individuals. However, as these individuals are already known to me and I am a party to the complaint, this rationale does not hold. The claim that no segregable portions can be released lacks specificity and transparency. The Department’s May 30th response In its May 30, 2025 response, the Department withheld responsive records under Exemption (c) of the Public Records Law. 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). First Clause – Personnel Information While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Association, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary

William J. Doyle, Esq. SPR25/1705 Page 4 June 27, 2025 documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Association, 431 Mass. at 798. Second Clause – Privacy Analysis under the second clause of 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. 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 the second clause of 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). 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. Under Exemption (c), the Department stated: Please be advised that MassDOT is withholding responsive records, in the event they exist, from disclosure under G. L. c. 4, § 7(26)(c). Massachusetts courts have consistently determined that personnel file information includes, at a minimum, employment applications, employee evaluations, disciplinary documentation, and promotion, demotion or termination information pertaining to a particular employee. Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). Based on the wording of your request, the requested records consist of core personnel records, such as evaluative documents concerning the performance of specific MassDOT employees. Therefore, they are protected from disclosure. See Wakefield, 431 Mass. at 792-93. In addition, the requested records would be exempt because they relate ‘to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy’ as provided for in G. L. c. 4, §

William J. Doyle, Esq. SPR25/1705 Page 5 June 27, 2025 7(26)(c). The privacy interests in any responsive records outweigh the public interest in disclosure. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). Producing non-exempt, segregable portions of records is not feasible in this instance because your request mentions particular employees; therefore, redaction is insufficient to protect non-public information from disclosure. See Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 438 (1983) (the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the circumstances at issue). The Department is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co., 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Although the Department indicates that the records include evaluative documents, it is unclear how all the requested records constitute one of the core categories of personnel information that is useful in making employment decisions regarding an employee. It is additionally unclear 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 Department 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. In addition, it is unclear what records the Department possesses that it withheld from disclosure. 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); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the records it has in its possession that it is withholding under Exemption (c). Additionally, it is unclear why the records may be withheld in their entirety. It should be noted that any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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). The Department must clarify these matters.

William J. Doyle, Esq. SPR25/1705 Page 6 June 27, 2025 Conclusion Accordingly, the Department is ordered to provide Ms. Lucas with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Ms. Lucas may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kiana Lucas