Laura Kraegel v. Division of Occupational Licensure (SPR 20221985)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/1985 Araceli Avila Ging Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. Ging: I have received the petition of Laura Kraegel, of WBUR, appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 26, 2022, Ms. Kraegel requested “copies of the resume and application of [a named individual at] the Board of Registration of Home Inspectors.” Previous Appeals This request was the subject of previous determinations. See SPR22/1279 Determination of the Supervisor of Records (June 14, 2022); SPR22/1443 Determination of the Supervisor of Records (July 7, 2022); and SPR22/1676 Determination of the Supervisor of Records (August 2, 2022). In my August 2nd determination, I ordered the Division to provide Ms. Kraegel with a response to her request. On August 18, 2022, the Division responded. Unsatisfied with the Division’s response, Ms. Kraegel petitioned this office and this appeal, SPR22/1985, 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). 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

Araceli Avila Ging SPR22/1985 Page 2 September 13, 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. 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. The Division’s August 18th Response In its August 18, 2022 response, the Division cites Exemption (c) to withhold the responsive records. 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). 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

Araceli Avila Ging SPR22/1985 Page 3 September 13, 2022 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. The Division asserts: [the Supervisor’s finding in SPR22/1676] fails to address or respond to the Division’s primary position, as asserted in all prior responses, that ‘personnel and medical files or information’ are absolutely exempt from disclosure pursuant to the first category of records exempt under the Privacy Exemption, without need for analysis under the balancing test.” Citing Wakefield Teachers Association v. School Committee of Wakefield, the Division contends that “[t]he records at issue are clearly within the first category of records exempt from disclosure. The Division states that, [i]t should be noted that this section of the law was recently amended by Chapter 253 of the Acts of 2020, omnibus police reform legislation, which added a final clause removing certain law enforcement records from this exemption. In modifying the existing language to add the last exclusionary clause to the exemption, the redrafting omitted “; and also” which previously preceded the word “information.” This change in the punctuation of this subclause does not change the categorical exemption of personnel and medical records under the law, an exemption that has been recognized and consistently enforced by the Supreme Judicial Court for over 35 years…. It should not be assumed that the Legislature intended to overrule well-established caselaw sub silentio by the omission of a single semi-colon….To interpret the amended statute otherwise would precipitate a fundamental shift in the law, substantially diminishing the privacy of personnel and medical records for over 380,000 state, municipal, and country employees. Current Appeal In her appeal, Ms. Kraegel asserts: As the Supervisor has held that these records are not absolutely exempt, I’m appealing again for their disclosure. And in terms of a balancing test, I argue that there is substantial public interest in the professional and educational credentials

Araceli Avila Ging SPR22/1985 Page 4 September 13, 2022 of public employees hired by the state to work on behalf of the public and that any highly personal details may be redacted. Based on the Division’s response, it is unclear how the resume and application can be withheld, in their entirety, under Exemption (c). It is unclear how the resume and application are intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Division did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. It is unclear how any privacy interest in the records described above outweighs the significant public interest in knowing whether an official is qualified for their job, and in knowing whether the hiring entity is carrying out its duties in an efficient and law-abiding manner. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See 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). In camera inspection In order to facilitate a determination as to the applicability of the Division’s claims under Exemption (c) to withhold the responsive records from disclosure, the Division must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may

Araceli Avila Ging SPR22/1985 Page 5 September 13, 2022 be subject to disclosure. Order Accordingly, the Division is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Laura Kraegel, WBUR