Chesley Oriel v. Department of Occupational Licensure (SPR 20220014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 18, 2022 SPR22/0014 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); SPR21/3166 Determination of the Supervisor of Records (December 17, 2021). The Division provided a response on December 30, 2021. Unsatisfied with the Division’s response, Attorney Oriel petitioned this office and this appeal, SPR22/0014, 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 SPR22/0014 Page 2 January 18, 2022 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 30th Response In its December 30, 2021 response, the Division cited Exemption (c) pertaining to redactions of residential addressees in 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 SPR22/0014 Page 3 January 18, 2022 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 30th response, the Division explained that “[s]imilar to providing an email addresses in consideration of receiving public records upon a request, members of the public also provide a physical address when requesting records held by the agency solely for the purpose of delivery of records. A private citizen has a reasonable expectation of privacy in providing such information without it becoming public information.” The Division further explained, “any public interest in the disclosure of addresses provided in consideration of receiving public records does not outweigh the privacy interest because this information would not shed light on whether government officials are carrying out their duties in a law abiding and efficient manner. Therefore, the Division maintains that the disclosure of a requestor’s address would constitute an unwarranted invasion of personal privacy and withholds this information in accordance with M. G. L. c 4 § 7(26)(c).” Based on the Division’s December 30th response, I find the Division has not demonstrated that residential addresses constitute intimate details of a highly nature. Also, 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. The Division must further clarify this. 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.

Andrew Perrino SPR22/0014 Page 4 January 18, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Chesley Oriel, Esq., Clinton W. Dick, Esq., Araceli Avila Ging