Nimra H. Azmi v. Executive Office of Health & Human Services (SPR 20191075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 13, 2019 SPR19/1075 Helen Rush-Lloyd Records Access Officer Executive Office of Health and Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Ms. Rush-Lloyd: I have received the petition ofNimra Azmi, Esq. of Muslim Advocates on behalf of Muslim Justice League appealing the response of the Executive Office of Health and Human Services (EOHHS) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 29, 2018, Attorney Azmi requested the following records: "l. All records of progress and updates from PEACE Project grantees, including notes of verbal conversations, emails, formal grant reports or other records existing in electronic or hard copy; 2. All records related to meetings of the PEACE Project Grantees hosted by EOHHS on January 25, 2017, April 27, 2017, and September 7, 2017; 3. All records regarding EOHHS site visits to PEACE Project Grantees in March 2017 and August 2017; 4. All university evaluations of PEACE Project Grantees and all records of all related discussions with universities, including but not limited to EOHHS meetings with: a. Boston University and/or Boston College in April 2017; b. Harvard School of Public Health in August 2017; and c. Boston College in August 2017; 5. All records related to an April 2017, meeting between EOHHS, the Massachusetts Department of Mental Health ("DMH"), and USAO-MA; 6. All records related to the PEACE Project 'Cooperative Agreement' between the USAO-MA and EOHHS; 7. All records related to a 'Community Awareness Briefing on Violent Extremism in the United States Train-the-Presenter (TTP) Program' hosted by USAO-MA in July 2017, in which an EOHHS representative was a panelist; 8. All records regarding a July 2017, meeting between EOHHS, DMH, USAO-MA, and Dr. Ronald Schouten; 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

Helen Rush-Lloyd SPR19/1075 Page2 June 13, 2019 9. All records regarding an August 2017 conference call between EOHHS, the Massachusetts Office of Grants Management and Research, Department of Corrections, USAO-MA, and National Governors Association; and 10. All records regarding a 'CVE stakeholder meeting' in September 2015, with EOHHS, USAO-MA, DMH, Department of Public Health, Massachusetts Department of Early Education and Care, Boston Public Schools, and Boston Children's Hospital." Previous appeal The requested records were the subject of a previous appeal. See SPRI 8/1345 Determination of the Supervisor of Records (September 19, 2019). In my September 19th determination, I found that EOHHS had not met its burden to assess its June 20th fee estimate. Accordingly, I ordered EOHHS to provide Attorney Azmi with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the September 19th determination, EOHHS provided responses on October 4, 2018, October 25, 2018, February 21, 2019, and February 28, 2019. The February 21st and 28th responses included the provision of responsive records in redacted form. EOHHS redacted the records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with EOHHS'sresponses Attorney Azmi petitioned this office and this appeal, SPR19/1075, was opened as a result. It appears Attorney Azmi is only appealing the redaction of the names of schools and universities within the records. 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, § 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Helen Rush-Lloyd SPR19/1075 Page 3 June 13, 2019 EOHHS's October 4th, October 25th, February 21st, and February 28th responses On October 4, 2018, EOHHS provided a revised fee estimate of $9,849.30. EOHHS also provided an explanation with respect to potential redactions in the responsive documents. EOHHS indicated that "[p] ersonally identifiable information, such as names, photographs, school locations, and personal contact information of project participants must be redacted pursuant to G.L. c. 7, §§ 7(26)(a) (exempt by statute) and (c) (exemption for personnel and medical information, and personal privacy). Such material constitutes 'personal data' protected from disclosure pursuant to G.L. 66A, the Massachusetts Fair Information Practice Act." EOHHS further stated that it will withhold from disclosure" ... highly personal information, and individual identifiable information ... as the disclosure would constitute an unwarranted invasion of personal privacy G.L. c. 4, § 7(26)( c) ." EOHHS also indicated that it will redact "the names and locations of schools and programs participating in the PEACE Project" pursuant to Exemption ( c) . EOHHS explains that "[d ]ue to the potential prejudices in the community, which prejudices the PEACE Project programs, in part, are designed to dispel, redaction of the names and locations of participating schools and programs is required by law to protect the privacy, including the personal safety, of individuals visiting and attending the schools and programs participating in the PEACE Project." EOHHS also indicated that "[d ]iscussions relating to policy development, such as improvements and modifications to be made for future projects, must also be redacted pursuant to G. L. c. 4, § 7 (26)(d) (exemption for policy development) in order to protect the integrity of future policies not yet implemented." On October 25, 2018, EOHHS provided a revised fee estimate, based on Attorney Azmi's modification of her May 29th request on October 16, 2018. EOHHS provided a cost estimate of $800 based on 32 hours of redacting 1,280 documents at a rate of $25 an hour. EOHHS repeated its previous exemption claims from its October 4th response. On February 21, 2019, EOHHS provided two PDF documents and indicated that records would be provided on a rolling basis and that it anticipated that the provision of the records would be completed by March 1, 2019. EOHHS asserted that "[p]ersonal contact information has been redacted from email records pursuant to G.L. c. 4, §7(26)(c), as it is private information, the disclosure of which may constitute an unwarranted invasion of personal privacy. Further, the redacted information is of a highly personal nature and contains specific details, which may identify individuals." EOHHS asserted that "[t]he individuals' privacy interests outweigh the public interest in disclosure. Additionally, certain information is personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act. Accordingly, the redacted information is also exempt from disclosure pursuant to M.G.L. c. 4, §7(26)(a) because it is exempt by statute or necessary implication thereof." EOHHS also indicated that certain email records were redacted pursuant to the attorney-client privilege.

Helen Rush-Lloyd SPR19/1075 Page 4 June 13, 2019 On February 28, 2019, EOHHS produced the last set of responsive email records. EOHHS asserted its previous exemptions claims to redact portions of the records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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). 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. 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). Second clause ofE xemption (c) - 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

Helen Rush-Lloyd SPR19/1075 Page 5 June 13, 2019 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. 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. Fair Information Practices Act (FIP A) EOHHS is advised that PIP A and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). PIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372,379 (1986) (stating that "determining whether the record sought is protected by PIP A depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). PIP A, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, PIP A may also operate to restrict disclosure. In her petition for appeal, Attorney Azmi claims that " ... the productions provided repeatedly redacted the names of schools and universities involved with the PEACE Project pursuant to Exemption (c)." Based on EOHHS responses, although EOHHS claims it redacted the names of schools and universities "[d ]ue to the potential prejudices in the community, which prejudices the PEACE Project programs ... ," it is unclear how the names of schools and universities constitute intimate details of a highly personal nature nor how disclosure would result in personal

Helen Rush-Lloyd SPRI9/1075 Page 6 June 13, 2019 embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, I find that EOHHS has not identified a privacy interest about an identified individual that substantially outweighs the public interest in obtaining this information. Consequently, I find that EOHHS has not met its burden to withhold the names of schools and universities from disclosure pursuant to the second clause of Exemption ( c) . I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, EOHHS is ordered to provide Attorney Azmi with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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, Rebecca S. Murray Supervisor of Records cc: Nimra Azmi, Esq.