Whitfield Larrabee v. Massachusetts Commission Against Discrimination (SPR 20201039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 13, 2020 SPR20/1039 Theresa Lepore Records Access Officer Massachusetts Commission Against Discrimination 1 Ashburton Place, Room 601 Boston, MA 02108 Dear Ms. Lepore: I have received the petition Whitfield Larrabee, Esq. appealing the response of the Massachusetts Commission Against Discrimination (Commission/MCAD) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 8, 2020, Attorney Larrabee requested: A. Records of complaints of discrimination filed with MCAD, including: 1. the names, addresses and telephone numbers of the complainants and respondents; 2. the type of discrimination alleged, including data concerning the basis of discrimination and complaint, such as sexual harassment, sex discrimination, disability, race, retaliation, age, etc.; 3. the date that the complaint was filed; 4. the last-date of discrimination; 5. the race and sex of the complainant; and 6. the unique identifying number assigned to the matter by the MCAD (docket number). The Commission responded on June 22, 2020, providing a portion of the responsive records and denying access to other portions pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Commission’s response, Attorney Larrabee petitioned this office and this appeal, SPR20/1039, was opened as a result. While this appeal was pending, the Commission provided a supplemental response dated July 9, 2020. 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

Theresa Lepore SPR20/1039 Page 2 July 13, 2020 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, § 10A(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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Commission’s June 22nd and July 9th responses In its June 22, 2020 response, the Commission enclosed “. . . a spreadsheet containing case data for 64 closed cases and 1 open case where an investigative disposition has entered. However, MCAD has withheld case data for 419 open cases where an investigative disposition has not entered, pursuant to G.L. c. 4, § 7(26)(f), the investigatory exemption, and G.L. c. 4, § 7(26)(a) which exempts records that are specifically or by necessary implication exempted from disclosure by statute.” Withheld records – open cases The Commission indicates that it withheld from disclosure open cases that are under investigation pursuant to Exemptions (a) and (f) of the Public Records Law. 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

Theresa Lepore SPR20/1039 Page 3 July 13, 2020 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. Under Exemption (a) the Commission states that its regulations, 804 C.M.R. 1.21(1)(a) and 804 C.M.R. 1.21(3), promulgated pursuant to G. L. c. 151B, § 1(5), permit it to withhold records of open cases which are currently under investigation. The Commission explains that pursuant to these regulations, “‘open’ cases at the MCAD where a disposition has not entered are still under investigation, and are specifically exempted from public disclosure by 804 CMR 1.21(1)(a) (2020).” In the Commission’s July 9, 2020 supplemental response, which responds to Attorney Larrabee’s claim that it retroactively applied its regulation, the Commission asserts that “[its] duly promulgated regulation found at 804 CMR 1.21(1)(a) (2020) applies to all public records requests made on or after January 24, 2020, and therefore the regulation was not retroactively applied to a request made on June 8, 2020.” The Commission states that “[i]t is true that ‘[o]rdinarily, statutory, and thus regulatory, changes of substance apply only to events that occur after the change’s effective date.’ Figueroa v. Dir. of Dep’t of Labor & Workforce Dev., 54 Mass. App. Ct. 64, 70-71 (2002) (citations omitted). . . . Under the general rule articulated in Figueroa and the express terms of 804 CMR 1.21(1)(a), . . . the MCAD’s withholding of complaints in response to a request made on June 8, 2020 is clearly not a retroactive application of its regulation effective on January 24, 2020.” The regulations, 804 C.M.R. 1.21(1)(a) and 804 C.M.R. 1.21(3), provide in relevant parts: Access to Commission Materials and Restrictions to Personal Data (1) Case Information Available to the Public. The following requirements apply to a request for case information by the public, all subject to 804 CMR 1.21(3): (a) Predetermination. The investigative file in every charge under investigation, including the complaint, shall be confidential and exempt from public disclosure. . . .

Theresa Lepore SPR20/1039 Page 4 July 13, 2020 804 C.M.R. 1.21(1)(a). (3) Unavailable Information. Privileged information, attorney work product, information exempt from disclosure pursuant to the public records law or other laws, information withheld or redacted pursuant to 804 CMR 1.21(4), and information placed under a pseudonym or protective order by the Commission pursuant to 804 CMR 1.04(7), 1.05(12) or 1.12(9) is not available to the public or to the parties. 804 C.M.R. 1.21(3). Based on the regulation, 804 C.M.R. 1.21(1)(a), which indicates that every charge under investigation including the complaint shall be confidential and exempt from public disclosure, I find the Commission has met its burden to withhold the case data of open cases under investigation pursuant to Exemption (a). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Where I find the Commission may permissibly withhold from disclosure, case data regarding open cases under investigation pursuant to Exemption (a), I decline to opine on the Commission’s Exemption (f) claim supporting non-disclosure of the responsive records.

Theresa Lepore SPR20/1039 Page 5 July 13, 2020 Redacted records – closed cases The Commission states that it redacted addresses and telephone numbers of complainants and respondents, as well as the race and sex of complainants from the responsive records 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). Second clause of Exemption (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, 432-33 (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. ---------------------------- 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.

Theresa Lepore SPR20/1039 Page 6 July 13, 2020 Pending litigation In its July 9th supplemental response, the Commission states that “[Attorney] Larabee and the MCAD are currently litigating the issue of whether the MCAD may properly invoke the public records law privacy exemption found at M.G.L. c. 4, section 7(26)(c) to withhold parties’ address, telephone, race and sex data from complaints requested under the public records law. [J. Whitfield Larrabee v. MCAD, SUCV2015-02725]. Therefore, the Supervisor of Records should deny this appeal under 950 CMR 32.08(2)(b)(1).” The Commission notes that “. . . the Superior Court has not yet held a motion hearing on the . . . Opposition and related Motion from Mr. Larrabee[,]” and further requests that Attorney Larrabee’s appeal be denied pursuant to 950 C.M.R, 32.08(2)(b)(3), because “Mr. Larrabee’s request (and the requests at issue in the litigation between himself and the MCAD referenced herein) is made solely for a commercial purpose, as discussed in the Opposition . . .” 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending litigation that seeks compliance with the Public Records Law through litigation, it is my determination that the redacted information at issue in this appeal is the subject of a dispute in active litigation. Accordingly, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Whitfield Larrabee