Catherine Christina v. Division of Occupational Licensure (SPR 20201289)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13, 2020 SPR20/1289 Jean McCarthy Records Access Officer Division of Professional Licensure Office of Public Safety and Inspections 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Catherine Christina appealing the response of the Division of Professional Licensure Office of Public Safety and Inspections (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 28, 2020, Ms. Christina requested: “the audio/tape recordings of the hearings that took place before the Massachusetts Board of Building Regulation and Standards in the matter of Signature Building Systems of PA, LLC, (MC# 0175), Case Record 117-00193, on both days of October 29th and 30th, 2019, before hearing officer Christopher Popov, Office of Hearings…” Prior appeal The requested records were the subject of a prior appeal. See SPR20/0807 Determination of the Supervisor of Records (Supervisor) (May 29, 2020). In its March 9, 2020 response, the Division denied Ms. Christina’s request in its entirety pursuant to Exemption (f) of the Public Records Law. As a result, Ms. Christina petitioned the Supervisor of Records (Supervisor), and SPR20/0807 was opened. In my May 29th determination, I found that the Division did not meet its burden of specificity of withholding the recordings in their entirety under Exemption (f). I ordered the Division to provide a further response to Ms. Christina’s request. It appears from the Division’s July 21, 2020 response to my May 29th determination, that the Division is no longer claiming Exemption (f) to withhold portions of the recording. Current appeal In its July 21st response, the Division provided Ms. Christina with a fee estimate to provide the recording, which included fees for segregation and redaction under Exemption (c), or G. L. c. 66A (Fair Information Practices Act). The Division’s estimate states, “[b]ased on the 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

Jean McCarthy SPR20/1289 Page 2 August 13, 2020 length of the recording, approximately 12 hours, [the Division] estimates that it will take at least 12 hours to review the recording and segregate any information which is exempt from disclosure under law. Pursuant to G. L. c. 66, § 10(d)(ii)(C), the [Division] is authorized to assess a fee for time spent segregating and redacting a requested record as required by the aforementioned statutes.” The Division’s total cost of its estimate is $120.00. As a result of the estimate for segregation, redaction and reproduction of the recording, and the Division’s response/estimate 53 days after the Supervisor’s May 29th order, Ms. Christina appealed to the Supervisor again, and the current appeal was opened. It is my understanding that the recording was made at a hearing that was open to the public, and that Ms. Christina was a witness. Ms. Christina asserts that because the hearing was open to the public, there should not be any portions of the recording that the Division may withhold as “personally identifiable information.” 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). Fair Information Practices Act In its July 21st response, the Division asserts, “…the responsive recording may contain personal identifying information that is statutorily requested pursuant to [Exemption (c)], or G. L. c. 66A, Fair Information Practices Act [FIPA].” FIPA 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). FIPA 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 FIP 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”). FIPA, by itself, cannot justify withholding information.

Jean McCarthy SPR20/1289 Page 3 August 13, 2020 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, FIPA may also operate to restrict disclosure. Exemption (c) The Division also indicates that the segregation and redaction of the hearing recording(s) may be necessary due to personal identifying information. 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). The first clause of Exemption (c) – personnel and medical information The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publ’g Co. v. Register of Probate for Norfolk Cnty., 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are “carrying out their duties in an efficient and law-abiding manner.” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual’s official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987).

Jean McCarthy SPR20/1289 Page 4 August 13, 2020 Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Second clause of (c) - privacy 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. Based on the Division’s July 21st response, I find that the Division has not specifically established what type of information may be contained in the recording from the public hearing that the Division states is “personally identifying information,” and is being withheld under either Exemption (c) or FIPA.

Jean McCarthy SPR20/1289 Page 5 August 13, 2020 Fee estimates – Agencies 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. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); see also 950 C.M.R. 32.06(4). The Division’s July 21, 2020 estimate In its July 21st estimate, the Division provided an estimate of $220.00 for 12 hours of segregation and redaction of the recording at $25.00 per hour, and $20.00 to reproduce the audio recording for transmission. The Division reduced its estimate by $100.00, which includes 4 hours of segregation and redaction time at $25.00 per hour. G. L. c. 66; § 10(d)(ii).The Division estimates that the balance of 8 hours of time at $25.00 per hour is necessary in order to segregate and redact the recording. Your estimate indicates that the hourly rates of $25.00 per hour to segregate and redact the recording, and one (1) hour at $20.00 per hour to reproduce the recording for transmission are the lowest paid hourly rate of the Division’s employees who are capable of the tasks involved with this request. Id. The Division did not assess any fee for search time. The Division is advised, a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); see also 950 C.M.R. 32.06(4). I find that the Division has not established that the segregation and redaction of a portion or portions of the recording are required by law. In addition, to the best of my knowledge, the Division did not file a petition with the Supervisor to assess fees for segregation and redaction.

Jean McCarthy SPR20/1289 Page 6 August 13, 2020 In her July 31st petition for appeal, Ms. Christina contends, “[the Records Access Officer] failed to respond to the Supervisor’s determination order within the prescribed timeline of 10 days by either producing the requested public records or providing notice of estimated costs or filing any petition for an extension or otherwise. Therefore, it is my position that any assertion of costs is untimely, not in compliance with procedure and has been waived.” Timely response Despite the Division’s July 21st estimate, I find it is unclear whether the Division complied with G. L. c. 66, § 10(e). Specifically, it must demonstrate whether it provided a timely response to Ms. Christina’s request. See G. L. c. 66, § 10(b)(i)-(ix) (outlining the requirements of a records custodian's written response to a requestor). Conclusion Accordingly, the Division is ordered to provide Ms. Christina with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Catherine Christina