Colman Herman v. Massachusetts Commission Against Discrimination (SPR 20202048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2020 SPR20/2048 Theresa Lepore Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Room 601 Boston, MA 02108 Dear Ms. Lepore: I have received the petition of Colman Herman appealing the response of the Massachusetts Commission Against Discrimination (Commission) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Herman requested “diversity data” for the Commission. Previous Appeal This request has been the subject of a previous appeal. See SPR20/1830 Determination of the Supervisor of Records (October 14, 2020). In my October 14th determination, I ordered the Commission to provide further information regarding whether release of the data would permit the identification of specific individuals. The Commission provided a supplemental response on October 22, 2020, providing further information regarding its Exemption (c) claim. Unsatisfied with this response, Mr. Herman petitioned this office and this appeal, SPR20/2048, was opened as a result. Current Appeal In its October 22, 2020 response, the Commission indicates that it has redacted disability information from the responsive data set pursuant to Exemption (c) of the Public Records Law. 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 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 SPR20/2048 Page 2 November 4, 2020 invasion of personal privacy G. L. c. 4, § 7(26)(c). Second clause of Exemption (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. In its September 28th response, the Commission provides the number of employees who have reported disability status by job category, and has redacted the race, ethnicity and gender information for those employees. The Commission explains that “when reported in conjunction with disability data, race and gender data allow for the identification of specific individuals working at the MCAD. For example, while there are eight MCAD employees in the ‘Officials and Administrators’ category, identifying the race and gender of the one employee who has reported having a disability to the MCAD will allow identification of that employee by looking at the report as a whole, because that individual’s race and gender combination is unique.” The Commission further writes: “[s]imilarly, while there are 57 employees in the ‘Professionals’ category, identifying the race and gender of the five employees who have reported having a disability to the MCAD will allow for the identification of individuals because two of those individuals have unique race and gender combinations, and the other three individuals, while

Theresa Lepore SPR20/2048 Page 3 November 4, 2020 they share the same gender and race combination, are part of a small group of easily identified employees.” In light of the Commission’s response, I find it may permissibly redact the information identifying disabled employees. Based on the response, I find the Commission has shown that release of this information, taken together, would permit the identification of specific individuals. Where disability status is information exempt from disclosure pursuant to the privacy clause of Exemption (c), I find that the Commission has met its burden to redact this information from the requested records. See id. at 292 fn 13 (identifying “medical condition” as an intimate detail protected by Exemption (c)). Conclusion Accordingly, whereas I find the Commission may permissibly withhold the responsive information pursuant to the privacy clause of Exemption (c), I will consider this administrative appeal closed. If Mr. Herman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman