Chesley Oriel v. Department of Occupational Licensure (SPR 20213166)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2021 SPR21/3166 Andrew Perrino Legal Services Coordinator Division of Occupational Licensure Office of Legal Counsel 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Mr. Perrino: I have received the petition of Chesley Oriel, Esq. appealing the response of the Division of Occupational Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 17, 2021, Attorney Oriel requested, “the names and addresses of each person who filed a complaint against a veterinarian that was discussed by the Board either in open session or in an investigative conference on February 13th 2020” and “all public records requests that have been made to the Board of Registration in Veterinary Medicine since January 1, 2018 to the present date along with a copy of the said Board's response to such requests.” Previous appeal This request was the subject of previous appeal. See SPR21/2747 Determination of the Supervisor of Records (November 16, 2021). The Division provided a response on December 3, 2021. Unsatisfied with the Division’s response, Attorney Oriel petitioned this office and this appeal, SPR21/3166, 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

Andrew Perrino SPR21/3166 Page 2 December 17, 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 Division’s December 3rd Response In its December 3, 2021 response, regarding the names and addresses of people who filed a complaint against a veterinarian the Department cited Exemption (f). The Division then cited Exemption (c) pertaining to public records requests made to the Board of Registration in Veterinary Medicine since January 1, 2018 to the present date. 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. Att’y 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. 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013).

Andrew Perrino SPR21/3166 Page 3 December 17, 2021 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. In the December 3rd response, the Division explained “[t]hrough email communications with attorney Oriel, Division staff clarified that this request seeks the cover letters of the Division’s responses to public record requests relating to the Veterinary Board from 2018 to August 17, 2021. The Division thoroughly responded on October 15, 2021 and included all cover letters and emails sent to requestors of records related to the Board within Attorney Oriel’s stated timeframe.” The Division further explained it “redacted the residential addresses and email addresses of the requestors in accordance with M. G. L. c 4 § 7(26)(c) which allows the withholding of personal data relating to a specifically named individual. The Division maintains that the disclosure of a requestor’s address and contact information would constitute an unwarranted invasion of personal privacy.” Personal email addresses, which are generally not listed within any sort of directory or available by any other means of a public search, similar in many respects to unlisted phone numbers, favor a finding of non-disclosure. The public interest in disclosure of this information does not outweigh the privacy interests associated with the redacted information. I find that the Division has met its burden in responding to request for personal email addresses under Exemption (c). However, I find the Division has not demonstrated that residential addresses constitute intimate details of a highly nature. It is uncertain how disclosure would result in personal embarrassment to an individual of normal sensibilities or whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Division did not provide additional information with respect to the balancing test which examines whether the public

Andrew Perrino SPR21/3166 Page 4 December 17, 2021 interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Division must clarify these issues regarding residential addresses. 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In the December 3rd response, the Division stated it “responded to this item in accordance with M. G. L. c 4 § 7(26)(f) which allows the agency to withhold materials that could compromise investigative efforts if disclosed. The Division maintains that the names and addresses of any individual who files a complaint with the agency are exempt from disclosure to protect and preserve the anonymity of voluntary witnesses/complainants and that disclosure of such information would hinder the possibility of effective regulatory enforcement.” Based on the December 3rd response, I find the Division properly claimed Exemption (f)

Andrew Perrino SPR21/3166 Page 5 December 17, 2021 in withholding, from the records, the identities and identifying information of the complainant and voluntary witnesses. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, the Division is ordered to provide a response to Attorney Oriel in a manner consistent with this order, the Public Records Law and its Regulations within 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: Chesley Oriel, Esq., Clinton W. Dick, Esq., Araceli Avila Ging