Andrew Don v. Department of Children and Families (SPR 20230173)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2023 SPR23/0173 Steven S. 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 Andrew Don 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 December 5, 2022, Mr. Don requested, “…information regarding the incidences of children spending the night in DCF Area Offices for Fiscal Year 22 and the first quarter of Fiscal year 23…” The Department responded on December 22, 2022. Unsatisfied with the Department’s response, Mr. Don petitioned this office and this appeal, SPR23/0173, was opened as a result. Subsequent to the opening of this appeal, the Department provided a supplemental response on February 9, 2023. 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 exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see 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 S. Treat, Esq. SPR23/0173 Page 2 February 10, 2023 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 Responses In its December 22, 2022 response, the Department provided records and cited Exemption (c) of the Public Records law to redact and withhold information. On February 9, 2023, the Department revoked its statement regarding withholding records and stated, “DCF amends this statement by way of removing ‘withheld’ and inserts ‘redacted’ in its place.” Current Appeal In his appeal, Mr. Don states, “DCF declined to specify or explain the link between these statutes, the exemptions, and the records sought…” 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.

Steven S. Treat, Esq. SPR23/0173 Page 3 February 10, 2023 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). 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. When citing Exemption (c), the Department states, Certain information has been redacted including personal information pertaining to children in DCF custody, such as, gender, age, alleged crime and incident date 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). Furthermore, the demographic information requested pertaining to individual children along with other publicly available data and information has been withheld in order to protect the individuals’ privacy interests and prevent reidentification. See G. L. c. 4, § 7 (26)(c). See also Supervisor of Records Decision, SPR17/1515 (information must be de- identified for the person most familiar with the situation, not necessarily the requester, when applying the privacy exemption to prevent reidentification of individuals). In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to redact responsive records, the Department 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 records, I will return the records to the Department’s 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. Mass. 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

Steven S. Treat, Esq. SPR23/0173 Page 4 February 10, 2023 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 be subject to disclosure. Order Accordingly, the Department 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: Andrew Don