Erin Smith v. Department of Transitional Assistance (SPR 20170108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. M~~rray Supervisor of Records February 6,2016 SPR17/108 Nakisha L. Skinner, Esq. Department of Transitional Assistance Executive Office of Health and Human Services 600 Washington Street Boston, MA 021 11 Dear Attorney Sltinner: I have received the petition of Erin Smith of Fox 25 News appealing the response of the Department of Transitional Assistance (Department) to a request for public records. G. L. c. 66 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Smith requested copies of "all emails, memos and reports sent to [the Department] Commissioner McCue about EBT cards or benefits from Oct. 1 to Oct. 3 1,2016." Previous appeal This request was the subject of a previous appeal. See SPR1611232 Determination of the Supervisor of Records (January 3,201 7). This office closed SPR1611232 by ordering the Department to provide Ms. Smith with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. The Department provided a response dated January 12,2017 in which it withheld certain records under Exemptions (a), (c) and (d) to the Public Records Law. G. L. c. 4, 5 7(26)(a), (c), (d); G. L. c. 66 517A. Ms. Smith appealed and SPR171108 was opened. Exemptions The Department indicates it is withholding records under Exemptions (a), (c) and Exemption (d) . Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: 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

Nakisha L. Skinner, Esq. Page 2 February 6,2017 specifically or by necessary implication exempted from disclosure by statute 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 Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (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 January 12'~le tter the Department explains "DTA records, relative to all public assistance shall be open to inspection only by public officials of the Commonwealth." You cite G. L. c. 66 5 17A in support of its position. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. 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. Attorney Gen., 391 Mass. 1,9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Nakisha L. Skinner, Esq. Page 3 February 6,2017 This clause does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Real Prop. Dep't, 380 Mass, at 625. The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance a. abuse, government assistance, family disputes and reputation. at 626 n. 2; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 4 15,427 (19 88) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 15 1, 156 (1979). The Department states "[plublic assistance records pertaining to a specifically- named individual, i.e. a DTA client, containing intimate details of a highly personal nature, the disclosure of which may constitute an unwarranted invasion of personal privacy, were withheld." Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based Exemption (d) is intended to avoid'premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'v of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, 5 7(26)(d); see also Envtl. Protection ~ g e kvc. M~in k, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure). The Department explains "[rlecords pertaining to development of a position on a policy matter with an open and ongoing deliberative process have been withheld." You also indicate "[plremature release of such records could taint the deliberative process if

Nakisha L. Skinner, Esq. Page 4 February 6,201 7 disclosed." Applicability of exemptions; segregable portions Based on the Department's January 1 2re~sp~on se, it is unclear which specific responsive records fall within each of the exemptions claimed by the Department. In order to meet its burden of specificity, the Department must provide a general description of the records withheld under each exemption claimed. See Dist. Attorney for the Norfolk Dist. v. Flatle~y4, 19 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). Further, the Department must explain whether any non-exempt, segregable portion of the responsive records can be provided. See G. L. c. 66, 5 10(a); 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). I understand a member of my staff contacted you and provided a copy of the file associated with this appeal. You indicated the Department would provide a supplemental response. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Ms. Smith with a response to the request, provided in a manner consisteilt with this order, the Public Records Law and its Regulations within ten (1 0) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@,sec.state.ma.us. Sincerely, u Rebecca S. Murray Supervisor of Records cc: Erin Smith