Sarah L. Ryley v. Department of Early Education and Care (SPR 20220548)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 21, 2022 SPR22/0548 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, 2021, 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 appeals This request was the subject of previous appeals. See SPR22/0168 Determination of the Supervisor of Records (February 3, 2022) and SPR22/0261 Determination of the Supervisor of Records (February 17, 2022). In my February 17th determination, I found the Department had not met its burden to redact portions of the records under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The Department provided a further response on March 4, 2022. Unsatisfied with the Department’s response, Ms. Ryley petitioned this office and this appeal, SPR22/0548, was opened as a result. This appeal pertains to redactions of addresses of the locations, names of locations, and referral agencies to the locations. While this appeal was pending, the Department provided a supplemental response on March 16, 2022, indicating that its arguments in its March 4th response are still valid. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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. SPR22/0548 Page 2 March 21, 2022 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 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. 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 Department’s March 4th response In its March 4, 2022 response, the Department claims that the program names, addresses and referral agencies are exempt under Exemptions (c) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(c), (n). 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

Denise J. Karlin, Esq. SPR22/0548 Page 3 March 21, 2022 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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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 Under Exemption (c), the Department explains, “[a]lthough there are no specifically named individuals in the information that was provided, these addresses are the homes where young people, age twenty-two and under (and some as young as six) live. The majority of these programs are licensed for a capacity of fewer than 10 children, thus making these residents even more vulnerable because, with such a small population, it is easier to learn who these children are. Only a handful of these programs are licensed for more than 20 residents. This is an especially vulnerable population of children, who often have multiple disabilities, including cognitive and developmental issues, as well as serious behavioral issues, including some with criminal records. Releasing the street addresses where this vulnerable population of children live in an aggregate form is extremely risky to the safety and well-being of these children, as well as to their privacy.” The Department indicates, “. . . the 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 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.” Additionally, the Department asserts, “. . . it important to note that the Supreme Judicial Court has held that in the public records context there may be a greater privacy interest in an aggregated compilation of personal information than in the discrete, specific information that a compilation summarizes under certain circumstances. EEC contends that this request is just such a circumstance as discussed above. See Boston Globe Media Partners, LLC v. Department of

Denise J. Karlin, Esq. SPR22/0548 Page 4 March 21, 2022 Public Health, 482 Mass. 147 (2019).” Despite the Department’s response, I find it has not met its burden to redact this information under Exemption (c). See Boston Globe Media Partners, LLC v. Dep’t of Public Health (DPH), 482 Mass. 427, 442 (2019) (describing 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). 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, 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.” PETA, 477 Mass. at 289-90. 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 “[because 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.

Denise J. Karlin, Esq. SPR22/0548 Page 5 March 21, 2022 Under Exemption (n), the Department posits, “. . . [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.” The Department further states, “[t]he redactions of the referral agencies were proper and intended to ensure the safety and well-being of vulnerable children, which outweighs the public’s right to know which specific agency referred a child to a specific program. To put a finer point on it, there is a difference in knowing that the Department of Youth Services is one of many agencies that can refer a child to a program and knowing that the Department of Youth Services affirmatively referred children to a specific program. Indeed, the latter could lead to the revelation that children with criminal histories are receiving services at a specific location – information that could pose a risk to their safety, not to mention intrude on their privacy and the statutory limitations on the disclosure of juvenile criminal histories. This is simply one example of the potential harm that can come from the release of this information and EEC was correct in its determination that this material is exempt from disclosure.” Despite the Department’s response, I find it has not met its burden to show that the program names, addresses and referral agencies sufficiently “resemble the records listed as examples in the statute as contemplated in PETA, at 289-90. The examples provided in the statute are “blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure.” G. L. c. 4, § 7(26)(n). As such, it is unclear how the requested information is similar to these examples or one a terrorist would find useful to maximize damage. Additionally, I find the Department has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the information, is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Conclusion Accordingly, the Department is ordered to provide Ms. Ryley with a response, 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.

Denise J. Karlin, Esq. SPR22/0548 Page 6 March 21, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Sarah Ryley