Damien Powell, Esq. v. Division of Occupational Licensure (SPR 20190513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 19, 2019 SPR19/513 Sheila York, Esq. Board Counsel Division of Professional Li censure 1000 Washington St. Suite 710 Boston, MA 02118-6100 Dear Attorney York: I have received the petition of Damien Powell, Esq. appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Powell requested "[c]omplete copies of any and all documentation related to the voluntary surrender of John L. Sloanaker, License No. 1548. The license expiration date is 06/30/1994." Previous appeal This request was the subject of a previous appeal. See SPR19/0121 Determination of the Supervisor of Records (February 1, 2019). In my February 1st determination, I ordered the Division to provide a written response to Attorney Powell, made in accordance with the Public Records Law and its Access Regulations (Regulations). The Division provided Attorney Powell with a response on February 20, 2019 citing Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Division's response, Attorney Powell appealed and SPRl 9/0513 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, § IOA(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). 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

Sheila York, Esq. SPR19/513 Page2 March 19, 2019 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, § lO(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. G. L. c. 66, § 1 O(b )(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 The Division provided Attorney Powell a copy of the responsive Voluntary Surrender Agreement; however, it redacted the criminal case docket numbers and withheld copies of the criminal convictions under Exemption ( c ). 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. 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). 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. This clause 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.

Sheila York, Esq. SPR19/513 Page 3 March 19, 2019 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 , 4 77 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 February 20th response the Division provides information regarding the applicability of the factors articulated in PETA. With respect to disclosure resulting in personal embarrassment, the Division asserts "[p ]ublic disclosure of the intimate details of a private citizen's convictions, including such details as the number of victim(s) and their initials; alleged date(s) of offenses; the pretrial release conditions; and the preservation order related to physical evidence, more than twenty five years after resolution of the criminal matter would embarrass a person of average sensibilities." The Division also claims the withheld records contain intimate details of a highly personal nature. You note that the Division has released records" ... that disclose that the named individual was convicted of two counts of lewd and lascivious behavior with a child in 1994 and that these convictions resulted in the surrender of his license to practice as a psychologist in Massachusetts in August, 1994." You further indicate "[t]he only data that the Division is withholding is the intimate details pertaining to those convictions, including the number of victim(s) and their initials; the pretrial release conditions; and sentencing conditions. These details are undoubtedly highly personal to both the named individual and his victim(s). As a matter of policy, the Division does not disclose personal identifying information of individuals who file complaints with this agency." With respect to the issue of whether the information is publically available elsewhere, the Division asserts". .. there is no factual basis in the record of this public record appeal to determine whether the certified copies of the criminal convictions, which the Division obtained through its investigatory procedures in 1994, are currently available to the public through another source." You continue by indicating "[d]etailed criminal record information from over twenty years ago of a private individual is far different than the publicly-available business contact information discussed in PETA , 4 77 Mass. at 292-94." With respect to balancing the privacy interests at issue versus the public interest in disclosure, the Division claims" ... the scale tips towards protecting the privacy interests of the named individual and any victim(s). The Division has already released Mr. Sloanaker's Voluntary Surrender Agreement which notifies the public that he was disciplined by the Board and the reasons for that disciplinary action. Mr. Sloanaker' s disciplinary status is also available on the Division's public website. The information already provided in response to your request meets the transparency goals of the public records law." You further note that " [d ]isclosure of highly personal details of criminal proceedings that occurred twenty five years ago and relate to

Sheila York, Esq. SPR19/513 Page4 March 19, 2019 victims of sexual offenses would be an unwarranted invasion of privacy not outweighed by the public's interest in disclosure of those details." In his appeal petition Attorney Powell asserts that " ... the docket numbers do not contain intimate details of a highly personal nature" and" ... these are simply the docket numbers of the criminal cases in which Mr. Sloanaker was convicted." He also notes" ... the Division has failed to identify any valid justification for withholding copies of Mr. Sloanaker' s criminal convictions." I find the Division has not met its burden to redact the docket numbers at issue; specifically, despite its February 20th response, it has not met its burden to show how docket numbers constitute information that invokes a privacy interest that outweighs the public interest in disclosure. With respect to the copies of the criminal convictions, I find the Division has not met its burden to withhold these records in their entirety. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In particular, it is unclear how all of the information within the record falls under Exemption (c). Conclusion Accordingly, the Division is ordered to review the records, redact where necessary, and provide Attorney Powell with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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, ~~ Supervisor of Records cc: Damien Powell, Esq.