Commonwealth Transparency v. Massachusetts Department of Children and Families (SPR 20220454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2022 SPR22/0454 Steven Treat, Esq. Records Access Officer Assistant General Counsel Department of Children and Families 600 Washington Street, 6th Floor Boston, MA 02111 Dear Attorney Treat: I have received the petition of opencommonwealth.org appealing the response of the Department of Children and Families (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2021, opencommonwealth.org requested “for the time period January 1, 2019 through the date [the Department] respond[s] with all responsive documents . . . Any and all electronic mail and/or text messages between the DCF (inclusive of all DCF employees, administration and contractors) and anyone at the @mhtl.com email domain.” Previous Appeal This request was the subject of a previous appeal. See SPR21/2908 Supervisor of Records Determination (November 9, 2021). In my November 9th determination, I ordered the Department to clarify its fee estimate, and encouraged the parties to communicate in order to facilitate providing records more efficiently and affordably. Subsequently, on November 24, 2021, the Department provided a revised fee estimate, and on February 24, 2022, provided its first production of records responsive to the request. Unsatisfied with the Department’s response, opencommonwealth.org appealed, and this case 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 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

Steven Treat, Esq. SPR22/0454 Page 2 March 8, 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. Att’y 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. Current Appeal In the appeal petition, opencommonwealth.org argues the following: The RAO has no legal or statutory authority to redact the following data from responsive records: 1. Dates and Times. Multiple examples of redacted dates and times can be found throughout the entire record set provided. There is no statutory exemption to the public records allowing the redaction or withholding of dates and times. 2. Names of School Districts. Multiple examples of redacted school district names can be found throughout the entire record set provided. There is no statutory exemption to the public records allowing the redaction or withholding of the names of Schools and or School Districts. 3. Types of hearings/events. Multiple examples of redacted hearing and/or event types can be found throughout the entire record set provided. There is no statutory exemption to the public records allowing the redaction or withholding of hearing/meeting types. 4. Information such as conference lines, passcodes, videoconference links, and meeting codes. The RAO argues a cybersecurity exemption that simply does not exist. None of the responsive records will likely jeopardize public safety or cyber security, especially virtual meeting information from the past. There is no statutory exemption to the public records allowing the redaction or withholding of conference lines, passcodes, videoconference links, and meeting codes. OpenCommonwealth can provide hundreds of examples of this type of data publicly published by agencies of the Commonwealth and Schools/Districts. 5. The RAO has admitted to wholly withholding 54 pages. There is no privilege log, and they have no legal authority to withhold these public records in totality under the law.

Steven Treat, Esq. SPR22/0454 Page 3 March 8, 2022 The Department’s February 24th Response In its February 24, 2022 response, the Department cites Exemption (a), various statutes, and Exemptions (c) and (n) for withholding and redacting responsive records. 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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). 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. Communications with Social Workers The Department cites G. L. c. 112, § 135A, which provides in pertinent part: All communications between a social worker licensed pursuant to the provisions of section one hundred and thirty-two or a social worker employed in a state, county or municipal governmental agency, and a client are confidential. . . . No such social worker, colleague, agent or employee of any social worker, whether professional, clerical, academic or therapeutic, shall disclose any information acquired or revealed in the course of or in connection with the performance of the social worker’s professional services, including the fact, circumstances, findings or records of such services. G. L. c. 112, § 135A.

Steven Treat, Esq. SPR22/0454 Page 4 March 8, 2022 Under this statute, the Department states that “confidential information sought and provided by DCF social workers in connection to children and families receiving services from DCF has been redacted pursuant to G.L. c. 112, §§ 135-135B (limiting release of social worker/client communications).” To the extent the Department has withheld or redacted communications between social workers and clients as described above, I find the Department may properly redact or withhold such information under G. L. c. 112, § 135A. FERPA The Family Educational Rights and Privacy Act (FERPA) is a federal statute and provides in relevant part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization. 20 U.S.C. § 1232g(b)(1). Under this statute, the Department states that it has redacted “education records of minor children pursuant to the Family Educational Right and Privacy Act, 20 USC § 1232g.” To the extent the Department has redacted education records as described above, I find the Department may properly redact such information. Programs for Individuals with Disabilities and Special Education Plans Confidentiality for early intervention programs for infants and toddlers with disabilities is governed by 34 C.F.R. § 303, which provides in pertinent part: Each State must ensure that the parents of a child referred under this part are afforded the right to confidentiality of personally identifiable information. 34 C.F.R. § 303.401(a). The Department states that “information pertaining to individuals with disabilities and special education plans has been redacted pursuant to 20 U.S.C. 1412 §§ 617(c), 642 and 34 CFR §§ 303.401-303.417.” To the extent the Department has redacted personally identifiable information pertaining to individuals with disabilities and special education plans, I find the Department may properly redact such information. Reports Prepared under G. L. c. 119, § 51A–51D The Department also cites G. L. c. 119, §§ 51E, 51F, which provide in relevant part:

Steven Treat, Esq. SPR22/0454 Page 5 March 8, 2022 The department shall maintain a file of the written reports prepared under this section and sections 51A to 51D, inclusive. These written reports shall be confidential. Upon request and with the approval of the commissioner, copies of written reports of initial investigations may be provided to: (i) the child’s parent, guardian, or counsel, (ii) the reporting person or agency, (iii) the appropriate review board, (iv) a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent, or (v) a social worker assigned to the case. No such report shall be made available to any persons other than those specified in this section without the written and informed consent of the child’s parent or guardian, the written approval of the commissioner, or an order of a court of competent jurisdiction. G. L. c. 119, § 51E. The department shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order G. L. c. 119, § 51F. To the extent the Department has withheld or redacted reports prepared under G. L. c. 119, §§ 51A–51D, and the data and information relating to individual cases in its central registry, I find the Department may properly redact or withhold such information. Exemption (c) Exemption (c) applies to: 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). 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

Steven Treat, Esq. SPR22/0454 Page 6 March 8, 2022 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). When analyzing a privacy claim, there is 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. Under Exemption (c), the Department argues the following: Names, date of births, personal contact information, medical information, and education information pertaining to children, parents, and family members pursuant to M.G.L. c. 4, §7(26)(c)(privacy exemption). Disclosure of individuals’ identifying information would constitute an unwarranted invasion of privacy. The individuals’ privacy interests outweigh the public interest in disclosure. Where this information is exempt under the privacy exemption, and where this information also constitutes personal data, DCF is prohibited from disclosing this information pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act (‘FIPA’). If DCF disclosed such information, DCF may be liable for damages under G.L. c. 214, § 3B. See also 801 CMR 3.00 (regulating dissemination of personal data under FIPA). Where the Department may properly withhold the names, personal contact information, and education information pertaining to children, parents, and family members pursuant to Exemption (a) as described above, I decline to address the Department’s Exemption (c) claims for withholding this information. See G. L. c. 112, § 135A (communications with social workers); 20 U.S.C. § 1232g(b)(1) (personally identifiable information contained in student records); 34 C.F.R. § 303.401(a) (personally identifiable information of parents of child with disability); G. L. c. 119, §§ 51E, 51F (reports, data and information relating to cases of child abuse). Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments,

Steven Treat, Esq. SPR22/0454 Page 7 March 8, 2022 or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290. Under Exemption (n), the Department states the following: Information such as conference lines, passcodes, videoconference links, and meeting codes has been redacted because it is exempt from disclosure pursuant to G. L. c. 4, § 7 (26)(n), as the information relates to “the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian…, is likely to jeopardize public safety or cyber security.” Based on the Department’s response, I find it is unclear how conference lines, passcodes, videoconference links, and meeting codes of virtual meetings that have already taken place are likely to jeopardize public safety or cyber security. The Department must clarify this. Burden of Specificity The Department states the following concerning records that it has withheld in their

Steven Treat, Esq. SPR22/0454 Page 8 March 8, 2022 entirety: DCF has withheld (54 pages) of records pertaining to minor children in the care and custody of DCF at the time of the communications as these as this [sic] information is ‘specifically or by necessary implication exempted from disclosure by statute.’ G.L. c. 4, § 7, cl. 26(a). The laws that prohibit the release of these records include but are not limited to: G.L. c. 119, §§ 51E, 51F (constraining the release of reports of child abuse and neglect); G.L. c. 66A; G.L. c. 112, §§ 135-135B; G. L. c. 4, § 7(26)(c); 110 CMR 12.00 (regulating the release of Department records); 42 USC § 671(a)(8) (Title IV-E of the Social Security Act); 42 USC § 5106a(b)(2)(A) (Child Abuse Prevention and Treatment Act); and 45 CFR § 205.50 (Federal regulation of Title IV-E). Although the Department may properly redact certain information pursuant to Exemption (a) and the various statutes described above, the Department has not provided enough information to demonstrate how the 54 pages of records may be withheld in their entirety. See G. L. c. 66, § 10(b )(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 - - - - - - (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must provide additional information on the contents of the 54 pages of records being withheld in their entirety, and must explain with specificity how the citeded statutes apply to those records. Additionally, based on the information provided in the appeal petition and in the Department’s response, it is unclear how the Department may redact the dates and times, the names of school districts, and the types of hearings or events involved in the records. It is also unclear what exemptions of the Public Records Law the Department is citing to redact these specific types of information. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide opencommonwealth.org with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: opencommonwealth.org