Jake Hentoff v. Massachusetts Department of Transportation (SPR 20251980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 23, 2025 SPR25/1980 William H. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Jake Hentoff, Esq., of the Boston Globe Media Partners, LLC, on behalf of John Hilliard, of the Boston Globe, appealing the response of the Massachusetts 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 22, 2025, Mr. Hilliard requested ... access to the following public records regarding [an identified individual], the driver of the Boston Public Schools bus that was involved in the fatal April 28, 2025 crash that killed [an identified individual], in the vicinity of 107 Washington Street in Hyde Park: [1] Any citation or crash history for [an identified individual][;] [2] The fatal accident notification for the April 28, 2025 crash that killed [an identified individual], in the vicinity of 107 Washington Street in Hyde Park[.] MassDOT responded on June 2, 2025. Unsatisfied with MassDOT’s response, Attorney Hentoff petitioned this office and this appeal, SPR24/1980, was opened as a result. Subsequently, I learned that MassDOT sent a supplemental response to Mr. Hilliard on July 23, 2025. 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 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

Williams H. Doyle, Esq. SPR25/1980 Page 2 July 23, 2025 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. Current appeal In his appeal, Attorney Hentoff asserts, “Mr. Hilliard’s Request seeks records that should precisely fall into the excluded category of “information on vehicular accidents, driving violations, and driver’s status,” and MassDOT fails to provide adequate reasoning justifying why it chose to apply the redactions without addressing the exclusion.” With regard to Exemption (c), Attorney Hentoff further asserts, MassDOT’s Response fails to provide any context or information as to why any of the requested records qualify as or contain intimate details of a highly personal nature, or explain how disclosure would result in personal embarrassment to a person of normal sensibilities. Instead, MassDOT summarily states, without further explanation or support, that it “determined that the privacy interests outweigh the public interest in disclosure.” This statement, even if true, is not sufficient to establish that privacy interests outweigh public interest so as to issue a blanket denial of all requested records. MassDOT’s June 2nd and July 23rd Responses In its June 2, 2025 response, MassDOT provided redacted records and cited Exemptions (a) and (c) of the Public Records Law in support of the redactions. In its July 23, 2025 response, MassDOT stated that it “... is not in possession of any records responsive to category 1.” Further, MassDOT provided additional information with regard to the redacted responsive fatal accident notification responsive to Item 2. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Williams H. Doyle, Esq. SPR25/1980 Page 3 July 23, 2025 A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its June 2nd response, MassDOT stated, “MassDOT redacted personal information under the Driver’s Privacy Protection Act (DPPA) as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); see also 18 U.S. Code § 2721(a); 940 CMR 37.04(13).” 940 C.M.R. 37.04(12) states in pertinent part: Nothing in these regulations shall be interpreted to authorize the designation as a public record of any information provided by or relating to (1) the applicant for a Massachusetts license, (2) the applicant for a learner’s permit, (3) the holder of a Massachusetts license, or (4) the holder of a learner’s permit. 940 C.M.R. 37.04(6). In its July 23rd response, MassDOT further stated, MassDOT is required to redact personal information under the Driver’s Privacy Protection Act (DPPA) as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); see also 18 U.S. Code § 2721. Specifically, the DPPA prohibits the Registry of Motor Vehicles from releasing “Personal Information,” which includes “an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information obtained by the department in connection with a motor vehicle record” except for permissible uses under 18 U.S.C. 1721(b). The Boston Globe does not satisfy any of the permissible uses under the DPPPA. Therefore, MassDOT redacted the name, license number, and birthdate of the driver, which is information the RMV would have obtained as part of issuing a driver’s license.

Williams H. Doyle, Esq. SPR25/1980 Page 4 July 23, 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). 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). 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 June 2nd response, MassDOT stated, “MassDOT redacted a small portion of information related ‘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). MassDOT has determined that the privacy interests outweigh the public interest in disclosure.” In its July 23rd response, MassDOT further asserted, In this case, any person of normal sensibilities would likely find personal embarrassment if the name, date of birth, and circumstances of death of a family member were made public in an official police filing, especially

Williams H. Doyle, Esq. SPR25/1980 Page 5 July 23, 2025 when the deceased relative was a small child that died tragically in a pedestrian/ bus crash. The redacted information contains information of a highly personal nature, including information that get to the very core of one’s identity, including name, date of birth, and circumstances of death. In addition, access to name and birthdate together could be used for identity theft, thus many privacy laws protect this information, such as the DPPA, the Massachusetts Fair Information Practices Act, and data breach protection statutes. See 18 U.S.C. 1721, MGL c. 66A § 1, and MGL c. 93H, § 1. Both the U.S. Congress and Massachusetts General Court have deemed name and birthdate, especially in combination, as information of a highly personal nature and worthy of statutory protection. Some of the information may be available from other sources, however, those sources are likely not public in the same manner as releasing a record under the Public Records Law. . . . Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In it July 23rd response, MassDOT further indicated, “[i]n addition to exemptions cited above, according to the Globe’s own reporting on July 21, 2025, the records in question are subject to litigation filed by the family of the decedent and an ongoing investigation ‘by the Suffolk County district attorney’s office and Boston police’...” This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of Mr. Hilliard’s request, is active and ongoing in the Massachusetts Superior Court. See Andrea Edmond, et. al. v. Transdev Services, Inc., et. al. filed in Suffolk Superior Court, Docket Number 2584CV01989. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I therefore decline to opine on the applicability of Exemptions (a) and (c) of the Public Records Law to the requested records. Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Williams H. Doyle, Esq. SPR25/1980 Page 6 July 23, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Jake Hentoff, Esq. John Hilliard