Matthew Rocheleau v. Soldiers' Home in Holyoke (SPR 20202528)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 5, 2020 SPR20/2528 Mark Yankopoulos, Esq. Legal Counsel/Records Access Officer Soldiers’ Home in Holyoke 110 Cherry Street Holyoke, MA 01040 Dear Attorney Yankopoulos: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Soldier’ Home in Holyoke (Home) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 10, 2020, Mr. Rocheleau requested the following records: [1] Any/all audio/video recordings, agendas, meeting packets, and meeting minutes, as well as any/all draft versions of agendas and meeting minutes, for each meeting of the Holyoke Soldiers’ Home Board of Trustees between December 1, 2015 and July 31, 2016, including but not limited to audio/video recordings, agendas, meeting packets, and meeting minutes for regular monthly meetings, executive session meetings, and special meetings; [2] Any/all job postings or other documents outlining the job description, duties, responsibilities, required qualifications, and/or preferred qualifications for the opening of superintendent/administrator of the Holyoke Soldiers Home in 2016. Previous appeal The requested records were the subject of a previous appeal. See SPR20/2512 Determination of the Supervisor of Records (December 30, 2020). I closed SPR20/2512 after this office learned that the Home had provided Mr. Rocheleau with a response on December 17, 2020. Unsatisfied with the Home’s response, Mr. Rocheleau petitioned this office and this appeal, SPR20/2528, was opened as a result. 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

Mark Yankopoulos, Esq. SPR20/2528 Page 2 January 5, 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 Home’s December 17th response In its December 17, 2020 response, the Home states that it does not possess audio or video recordings of the Board of Trustees meetings for the time period requested. The Home provided certain records comprised of “. . . agendas, minutes and supporting materials (meeting packets) provided to the Trustees for the meetings of the HLY Board of Trustees between December 1, 2015 and June 30, 2016.” The Home asserts that it redacted and/or withheld portions of the responsive records under Exemptions (a), (b), and (c) of the Public Records Law. Item 1 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 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).

Mark Yankopoulos, Esq. SPR20/2528 Page 3 January 5, 2020 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. The Home explains that it redacted and/or withheld names of veteran residents, names of applicants, resumes and cover letters of un-hired applicants from the executive session minutes. The Home explains that “[t]hese redactions and withholding of records are made pursuant to M.G.L. c. 30A, §22(f), which states in pertinent part that ‘[w]hen the purpose for which a valid executive session was held has been served, the minutes, preparatory materials and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.’ (emphasis added).” The Home indicates that “. . . personal email addresses, addresses and phone numbers in the withheld material are personal data protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act and, thus, also exempt from public disclosure under G.L. c. 4, § 7(26)(a), as it is exempt by statute or necessary implication thereof.” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under 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 exemption 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

Mark Yankopoulos, Esq. SPR20/2528 Page 4 January 5, 2020 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 this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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 exemption 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. The Home further explains that Exemption (c) also “. . . applies to protect the privacy of unsuccessful applicants as they are private citizens, not public employees. . . . Applicants who are not selected for employment remain private citizens, and have a greater expectation of privacy than public employees. The information is exempt from disclosure 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.” The Home states that “[p]ublic disclosure of the names, cover letters and resumes of applicants who are not selected for employment would likely result in personal embarrassment to an individual of normal sensibilities. People for the Ethical Treatment of Animals, Inc. v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The appropriate standard for de-identifying information is from the perspective of persons most familiar with the individual and the situation, not necessarily the requester. See Supervisor of Records Determination, SPR17/1515 (November 3, 2017). The individuals’ privacy interests outweigh the public interest in disclosure.” Item 2 Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The

Mark Yankopoulos, Esq. SPR20/2528 Page 5 January 5, 2020 general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. With respect to item 2, the Home explains that it withheld a “. . . draft copy of interview screening questions for applicants pursuant to M.G.L. c. 4, §7(26)(b) (internal personnel rules and practices). . . . The Board of Trustees of the Soldiers’ Home in Holyoke (BOT) is in the process of hiring a new superintendent, and HLY maintains releasing screening questions previously used to interview candidates for the same position will have an adverse effect on the pending hiring process.” Open Meeting Law Given that this appeal is related to documents received and used by the Board of Trustees, this raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination under the Public Records Law at this time. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek determination on this issue. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau