Colman Herman v. Office of Consumer Affairs and Business Regulation (SPR 20170903)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 13, 2017 SPR17/903 Christopher Goetcheus Records Access Officer Office of Consumer Affairs and Business Regulations 10 Park Plaza, Suite 5170 Boston, MA 02116 Dear Mr. Goetcheus: I have received the petition of Colman Herman appealing the response of the Office of Consumer Affairs and Business Regulations (OCABR) to his request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Herman requested a copy of: 1. All expense records for John C. Chapman, incurred in his capacity as Undersecretary of OCABR from July 1, 2016 to June 25, 2017, including: (a) Expense reports with back-up receipts; (b) Credit card statements with back-up receipts; (c) Automobile expense records; and (d) Any other records that document Undersecretary Chapman's expenses; and 2. The written employee reimbursement policy of OCABR. OCABR 's response Enclosed with OCABR's June 30th response, you provided Mr. Herman with twelve (12) pages of records. Your response states that certain materials available for disclosure are subject to redaction pursuant to G. L. c. 4, § 7(26), specifically the Fair Information Practices Act (FIP A), G. L. c. 66A(2)( c), or they constitute personal information, the disclosure of which would constitute an unwarranted invasion of personal privacy. Further, you state, "to the extent that the OCABR possesses additional records responsive to your request, they are exempted from disclosure pursuant to G. L. c. 4, § 7(26)(a) and (c), as · referenced above with respect to redaction." Mr. Herman petitioned the Supervisor of Records (Supervisor), and this appeal was opened. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Christopher Goetcheus SPR17/903 Page 2 July 13, 2017 With his petition, Mr. Herman included a copy of the records that OCABR provided. These records consist of nine (9) pages of records responsive to Mr. Herman's request for any policy for reimbursement of expenses, and three (3) pages of reimbursement records for parking expenses including parking receipts from July, August and October 2106. To date, OCABR has not provided any other records responsive to his request l(a)-(d), and has not provided any explanation for the lack of production. OCABR's response is vague, and states only, "to the extent that OCABRpossesses additional records to your request, they are exempted from disclosure pursuant to Exemptions (a) and (c), with respect to redaction." It remains unclear whether OCABR has conducted a diligent search for the records responsive to the requests and whether OCABR is withholding the records pursuant to Exemption (a) and (c) entirely, or will provide the records in redacted format pursuant to the exemptions in the Public Records Law. 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, § lOA( 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 town 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, § 1O (b ); 950 C.M.R. 32.06(3); see also District 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. 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). 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. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Christopher Goetcheus SPR17/903 Page 3 July 13, 2017 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 a 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. OCABR cites FIP A as to allow for redaction of certain materials. I find that OCABR did not meet its burden of properly explaining how FIPA applies to either redact certain information in the content of the records or withhold the records. Exemption (c) -second clause OCABR has also claimed Exemption (c) to either withhold or redact the responsive records. Exemption (c) applies to: 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. G. L. c. 4, § 7(26)(c). Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Where OCABR has claimed that the second clause of Exemption (c) applies to either redacted information in the content of the records or withheld records in their entirety, only the second clause of Exemption (c) is analyzed in this determination. Public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). Certain otherwise personal information may be considered public if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (198); Globe Newspaper Co., 388 Mass. at 438. The substantial public interest in ascertaining the manner in which public officials perform their official duties will also operate to lessen that which may be considered personal with respect to a public employee. Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Co. v. Clerk of the Third District Court of Bristol, 377 Mass. 404, 417 (1979); 1976-77 Op. Atty Gen. Mass. 157 at 12.

Christopher Goetcheus SPR17/903 Page4 July 13, 2017 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 ofReal Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. The second clause ofExemption (c) 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 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). This clause 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. The requested records concern expenses filed by a public employee and funds reimbursed to this same public employee which were paid from taxpayer funds. There is a strong public interest in the monitoring of public expenditures. As a result, certain information that would ordinarily be considered personal may be a public record if it relates to a public employee's official responsibilities. See Brogan, 401 Mass. 306, 309 (1987) (attendance records of public employees are public); see also Hastings & Sons Publishing Company v. City Treasurer of Lynn, 3 7 4 Mass. 812, 818 (1978) (payroll records of public employees are public record). Order I find that OCABR did not meet its burden of demonstrating the applicability of Exemptions (a) and (c), including the citation to the Fair Information Practices Act, G. L. c. 66A (FIP A) to either withhold responsive records, or redact certain portions of responsive records under the Public Records Law. A Records Access Officer is required to not only claim an exemption to withhold information, but must also specifically explain how the exemption applies to the withheld record or portion of a record. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Flatley, 419 Mass. at 511.

Christopher Goetcheus SPR17/903 Page 5 July 13, 2017 Accordingly, the OCABR is ordered to provide Mr. Herman with a response to his requests in a manner consistent 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. Mr. Herman may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor uf Records cc: Colman Herman