Sarah L. Ryley v. Department of Early Education and Care (SPR 20220261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2022 SPR22/0261 Denise J. Karlin, Esq. Assistant General Counsel Department of Early Education and Care 50 Milk Street, 14th Floor Boston, MA 02109 Dear Attorney Karlin: I have received the petition of Sarah Ryley, of the Boston Globe, appealing the response of the Department of Early Education and Care (Department/EEC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 3, 2022, Ms. Ryley requested: . . . data, in spreadsheet format, from the Licensing Education Analytic Database (LEAD) pertaining to congregate care services that have been licensed by the Department of Early Education and Care, from the earliest date available in the database through the date my request is generated. Previous appeal This request was the subject of a previous appeal. See SPR22/0168 Determination of the Supervisor of Records (February 3, 2022). SPR22/0168 was closed after the Department provided a supplemental response on February 2, 2022. Unsatisfied with the Department’s response, Ms. Ryley petitioned this office and this appeal, SPR22/0261, was opened as a result. Ms. Ryley notes in her appeal that she is appealing the redaction of addresses of the locations, names of locations, and referral agencies to the locations (DYS, DCF, and/or DDS). While this appeal was pending, the Department provided a supplemental response on February 4, 2022. 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 agency or 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

Denise J. Karlin, Esq. SPR22/0261 Page 2 February 17, 2022 municipality 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. The Department’s February 2nd and 4th responses The Department claims it redacted program names, addresses and referral agencies under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(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). 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 Prop. 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).

Denise J. Karlin, Esq. SPR22/0261 Page 3 February 17, 2022 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. Program names and addresses The Department explains that it “. . . redacted the addresses of the individual programs and portions of the program names that contain those addresses. . . . Although there are no specifically named individuals in this information being provided, these addresses are the homes where young people, age twenty-two and under (some as young as six) live. This is an especially vulnerable population of children who often have multiple disabilities, including cognitive and developmental issues, as well as serious behavioral issues. Releasing the addresses of where this vulnerable population lives in an aggregate form is extremely risky to the safety and well-being of these children.” The Department further explains, “[h]aving such addresses and names on an aggregated list makes it easier for this type of private information to be disseminated and to reach those who may mean to harm these children. In the current climate, where there have been many serious cases of harm being done to vulnerable children, EEC wishes to make it clear that disclosing the specific location of the programs, either through the particular address or through a name that contains an address or location, puts these fragile children at increased risk and that the protection of these children outweighs any interest in knowing the location of where these children live.” Referral agencies The Department states that it “. . . redacted information regarding the referral agencies and street addresses, as well any information in an individual program’s name that includes a specific location or address. . . . The identification of the specific referral agency gives insight into the specific vulnerabilities that the children living in these programs possess. These referral agencies are social service agencies such as the Department of Children Families (DCF), the Department of Youth Services (DYS), and the Department of Developmental Disabilities (DDS), as well as private social service agencies. They provide mental health, family support, and other services of a sensitive nature to the children who live in these group care residences. The identification of the specific referral agency gives insight into the specific vulnerabilities that the children living in these programs possess, which would constitute an unwarranted invasion into their personal privacy.” The Department argues, “[t]he right to know the location of each school can be obtained from sources other than an aggregated list. However, certain details on the aggregated list put the children who live in these group homes at greater risk of harm from members of the public who mean them harm. It shows a pattern of where the programs are located, thus making them easier

Denise J. Karlin, Esq. SPR22/0261 Page 4 February 17, 2022 targets for those with ulterior motives. Additionally, identifying the referral agencies for these group homes put these vulnerable children at greater risk of harm because those with less than good intentions will know where the vulnerabilities lie. EEC is not in any way intimating any ulterior motivations on the part of the Requestor, but once such information had been disclosed, it would have to be released to anyone requesting such sensitive information. Using this balancing test, EEC correctly determined that the privacy interest in protecting vulnerable children substantially outweighed any public interest in obtaining this limited information.” Based on the Department’s response, it is unclear how the names and addresses of certain programs and referral agencies, constitute intimate details of a highly personal nature, nor how disclosure would lead to the embarrassment of individuals of normal sensibilities. Where the Department notes that the requested information can be obtained from sources other than an aggregated list, it is uncertain the privacy interests at stake that outweighs the public interest in obtaining this information. Further, in Boston Globe Media Partners, LLC v. Dep’t of Public Health (DPH), 482 Mass. 427 (2019), the Supreme Judicial Court described additional factors to consider when analyzing privacy issues: (1) the extent to which multiple indices could be compared to reveal private information, (2) the availability from other sources of the information in the requested indices, (3) the risk from disclosure of identity theft or fraud, and (4) the extent to which disclosure could result in unwanted intrusions. DPH, 482 Mass. at 442. In light of the above, I find the Department must provide additional information regarding its Exemption (c) claim that addresses the above factors. Conclusion Accordingly, the Department is ordered to provide Ms. Ryley 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: Sarah Ryley