Matthew Rocheleau v. Essex District Attorney's Office (SPR 20210405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2021 SPR21/0405 David O’Sullivan, Esq. Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney O’Sullivan: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Essex County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2021, Mr. Rocheleau requested “[a]ny/all disclosures of immediate family working in Massachusetts state government that were made by individuals who applied for employment with the Eastern District Attorney between Jan. 1, 2015 and present.” Mr. Rocheleau claimed “[t]he records sought by this public records request are, by law, a matter of public record. Specifically, M.G.L. Part IV, Title I, Chapter 268A, Section 6B.” Previous appeal This request was the subject of a previous appeal. See SPR21/0240 Determination of the Supervisor of Records (February 17, 2021). In my February 17th determination, I found that the Office had not met its burden to redact records under Exemptions (o) and (p) of the Public Records Law. G. L. c. 4, § 7(26)(o), (p). Accordingly, I ordered the Department to provide Mr. Rocheleau with the records in a manner consistent with the order, the Public Records Law, and its Regulations. Subsequently, the Office provided a supplemental response on February 18, 2021. Unsatisfied with the Office’s response, Mr. Rocheleau petitioned this office and this appeal SPR21/0405, was opened as a result. 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). 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

David O’Sullivan, Esq. SPR21/0405 Page 2 March 4, 2021 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 Office’s February 18th response In its February 18, 2021 response, the Office enclosed an updated list with information it previously withheld under Exemptions (o) and (p). However, the office states, “. . . nine applicants seeking employment at this Office disclosed information that was outside the scope of your original request and was not required to be disclosed pursuant to G.L. c. 268A – namely, family members who are not a ‘spouse, parent, child or sibling or the spouse of the candidates parent, child or sibling,’ G.L. c. 268A, § 7B, and family members who are employed by municipalities or federal agencies, which do not qualify as ‘state agenc[ies]’ as defined in G.L. c. 268A, § 1. . . .” The Office further explains, “‘[p]ersonnel’ files or information, including ‘employment applications,’ however, are exempt from disclosure pursuant to G.L. c. 4, § 7, cl. 26(c). Commonwealth v. Wakefield, 431 Mass. 792, 796 (2000). Massachusetts General Laws ch. 268A, carves out specific information included in an employment application – disclosures of immediate family members who work for a state agency – that would otherwise be exempt from disclosure, to be available for public inspection. The information you now seek – applicant disclosures of non-immediate family members or family members who do not work at a state agency – does not fall under the scope of the specific information required to be disclosed pursuant to G.L. c. 268A to be made available to the public, and therefore would qualify as ‘personnel’ information in an employment application exempted from disclosure pursuant to G.L. c. 4, § 7, cl. 26(c).” 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).

David O’Sullivan, Esq. SPR21/0405 Page 3 March 4, 2021 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); Att’y 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 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; 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 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. It is my understanding that the Office intends to provide a supplemental response regarding this request. Conclusion Accordingly, the Office is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau