Wayne Willis v. Department of Developmental Services (SPR 20221485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2022 SPR22/1485 Brian Fleming, Esq. Assistant General Counsel Department of Developmental Services 1000 Washington Street Boston, MA 02118 Dear Attorney Fleming: I have received the petition of Wayne Willis appealing the response of the Department of Developmental Services (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 12, 2022, Mr. Willis stated: Please tell me the Senior DDS employee in charge of [a named center] in Danvers during September 12, 2021. Please inform me of all DDS General Councel [sic] employees who were involved in any manner with the alledged [sic] [named murder]. Please send me the official, and complete, report issued by DDS, about the alledged [sic] [named murder]. The Department provided a response on June 27, 2022 indicating that the records are exempt under Exemptions (c) and (f). Unsatisfied with the response, Mr. Willis petitioned this office and this appeal, SPR22/1485, 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 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(d)(iv) (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 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

Brian Fleming, Esq. SPR22/1485 Page 2 July 14, 2022 exemption or exemptions upon which the withholding is based…”); 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). 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 June 27th Response In its June 27, 2022 response, the Department cites Exemptions (c) and (f) to withhold the report and also asserts that: First, your email contains two questions. In responding, DDS notes that M.G.L. c. 66, § 10, applies to existing records in an agency’s custody, and an agency is not required to answer questions or create a record in response to a Requestor’s inquiries…. Further, to the extent the individual is receiving services from DDS, records are confidential and exempt under MGL c. 4, § 7, ¶26(c). Records for DDS clients are confidential and include “protected health information” and “personal data” protected by the Health Insurance Portability and Accountability Act (“HIPAA”) of 1996, 42 U.S.C. 1320d et seq.; the Fair Information Practices Act (FIPA), M.G.L. c. 66A; and DDS’s statutes and regulations, M.G.L. c. 123B, § 17, and 115 CMR 4.00 et seq….You have also asked for an investigation report. Disclosure of investigation documents are exempt from production under the public records law. See M.G.L. c. 4, § 7 ¶ 26(f)… No Duty to Answer Questions Mr. Willis is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where Mr. Willis submitted to the Department two questions, I find the Department has no duty under the Public Records Law to answer such questions. 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

Brian Fleming, Esq. SPR22/1485 Page 3 July 14, 2022 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). 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). 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. 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). 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. Although the Department states they believe they may withhold the responsive records under Exemption (c), the Department has not sufficiently explained their reasoning. It is uncertain how this information constitutes intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Additionally, it is not clear from the Department’s response, whether this information is available from other sources. The Department must clarify this matter. 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

Brian Fleming, Esq. SPR22/1485 Page 4 July 14, 2022 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, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y 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 289-290. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (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. See also 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’s response did not contain the specificity required in a denial of access to public records. The Department merely cites Exemption (f) without any explanation of the applicability of the exemption to the responsive records. It is unclear how the requested records constitute investigatory materials. It is unclear how the release of the records would compromise an ongoing investigation or “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). It is additionally uncertain why the Department cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Willis 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

Brian Fleming, Esq. SPR22/1485 Page 5 July 14, 2022 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Wayne Willis