Kiana M. Lucas-Yang v. Massachusetts Department of Transportation (SPR 20251713)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2025 SPR25/1713 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 Department of Transportation (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2025, Ms. Lucas requested, “…public records involving or referencing [an identified individual] in relation to my employment with the Registry of Motor Vehicles and/or MassDOT… [including] all relevant electronic communications, attachments, and associated internal documents.” Specifically, Ms. Lucas sought: [1] All emails, internal messages, memos, notes, and communications sent by or to [an identified individual] between 2018 to 2024 that reference [an identified individual][;] [2] Any documentation regarding suppressed follow-ups, delayed responses, or disregard of escalated concerns involving [an identified individual][;] [3] Internal records or investigations involving favoritism, retaliation, or unfair delegation of credit, including complaints by or about [an identified individual][;] [4] Any communications or notes in which [an identified individual] was included regarding my assignments, performance, ideas, documentation submissions, whistleblower activity, or concerns related to workplace equity or bias[;] [5] Evaluations, summaries, or behavioral records that reflect leadership patterns involving suppression of staff concerns or resistance to feedback[.] 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. SPR25/1713 Page 2 June 27, 2025 MassDOT responded on June 9, 2025, assigning the request reference number P001069- 052025. Unsatisfied with MassDOT’s response, Ms. Lucas petitioned this office and this appeal, SPR25/1713, 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). 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. Status of the Requestor; Reason for the Request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Lucas’ interest in obtaining the records shall have no bearing on the public status of the responsive records. MassDOT’s June 9th Response In its June 9, 2025 response, MassDOT cited Exemption (c) of the Public Records Law to withhold the responsive records in their entirety. Current Appeal In her appeal petition, Ms. Lucas states, “[t]he ongoing refusal to release these records obstructs my rights, suppresses documentation related to protected disclosures, and raises serious legal concerns under both state and federal whistleblower and retaliation statutes.”

William J. Doyle, Esq. SPR25/1713 Page 3 June 27, 2025 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). 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 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).

William J. Doyle, Esq. SPR25/1713 Page 4 June 27, 2025 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), MassDOT stated: Please be advised that MassDOT is withholding responsive records, to the extent they exist, from disclosure under G. L. c. 4, § 7(26)(c)… 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. 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, § 7(26)(c). The privacy interests in any responsive records outweigh the public interest in disclosure… 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… MassDOT 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 MassDOT indicates that the records “consist of core personnel records such as evaluative documents concerning the performance of specific MassDOT employees,” it is unclear how all of 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 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. MassDOT must also provide additional

William J. Doyle, Esq. SPR25/1713 Page 5 June 27, 2025 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. Additionally, MassDOT 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). Therefore, MassDOT must identify the records it has in its possession that it is withholding under Exemption (c). 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). MassDOT must clarify these matters. Conclusion Accordingly, MassDOT 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 (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. Ms. Lucas may appeal the substantive nature of MassDOT’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kiana Lucas