Michael P. Dreslinski v. Department of Mental Health (SPR 20191921)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records October 4, 2019 SPR19/1921 Misael Garcia Depaiiment of Mental Health 25 Staniford St. Boston, MA 02114 Dear Mr. Garcia: I have received the petition of Michael Dreslinski appealing the response of the Department of Mental Health (Depaiiment/DMH) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Dreslinski requested 6 categories of records. The Department responded on August 12, 2019 by providing ce1iain records with portions redacted under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c); G. L. c. 66A; 45 C.F.R. Parts 160 and 164. Tlte 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. Appeal In his appeal petition Mr. Dreslinski indicates "[t]his petition appeals the DMH redaction of the business email address and phone number for members of the news media." One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Misael Garcia SPR19/1921 Page2 October 4, 2019 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, 432-34 (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 Prope1iy 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. In its August 12th response the Department indicates, in relevant pati, " [e ] nclosed are foutteen [14] records responsive to your request. Please be advised that a small portion of these records has been redacted to protect names, personal home addresses, emails and phone numbers. The disclosure of this information is exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26 ( c) , as it is private information, the disclosure of which may constitute an unwarranted invasion of personal privacy. The redacted information is of a highly personal nature. The individuals' privacy interests outweigh the public interest in disclosure. See G.L. c. 4, § 7, cl. 26

Misael Garcia SPR19/1921 Page 3 October 4, 2019 (c), which exempts materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." In his appeal petition Mr. Dreslinski asserts "[t]he withheld information is publicly available from several sources other than DMH, including the news media itself. Further, the withheld material is used during the normal course of media business, regularly being provided to the general public in fmiherance of news gathering activities." I find the Department has not established how disclosing the email addresses and phone numbers at issue "may constitute an unwarranted invasion of personal privacy" as required by Exemption ( c ). In particular, it is unclear how withholding this information under the second clause of Exemption (c) is permissible, patiicularly in light of the factors articulated in PETA described above. Conclusion Accordingly, the Department is ordered to provide Mr. Dreslinski a response 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, ~r~ Supervisor of Records cc: Michael Dreslinski