Devon Friedfertig v. Massachusetts Department of Children and Families (SPR 20230503)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 29, 2023 SPR23/0503 Steven Treat, Esq. Records Access Officer Assistant General Counsel Executive office of Health and Human Services Department of Children and Families 600 Washington Street, 6th Floor Boston, MA 02111 Dear Attorney Treat: I have received the petition of Attorney Devon Friedfertig, on behalf of Miguel de Icaza, 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 21, 2022, and January 10, 2023, and again on January 26, 2023, Attorney Friedfertig requested the following: any and all documents in the possession or control of the Department of Children and Families related to [a named individual] and the drowning fatality that occurred on [a specified date]. These documents include, but are not limited to, the following: 1. Any and all notes and reports relating to witness interviews, including the interviews of [three named individuals]. The Department responded on October 27, 2022, citing Exemptions (c) and (a) of the Public Records Law for withholding responsive records. Unsatisfied with the Department’s response, Attorney Friedfertig appealed, and this case was opened as a result. While this appeal was pending, the Department provided a further response in an email to Attorney Friedfertig and this office on March 24, 2023. Status of the Requestor In correspondence to Attorney Friedfertig on February 27 and 28, 2023, the Department indicates that because “Mr. de Icaza is not the biological parent of the [victim] and that is who the report is based on,” Attorney Friedfertig “will need a court order to obtain the records.” 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. SPR23/0503 Page 2 March 29, 2023 Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Friedfertig’s status, and the status of his client, will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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(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. The Department’s Responses In its October 27, 2023 response, the Department cites Exemptions (a) and (c) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c). The Department further elaborates on its arguments in a supplemental response to Attorney Friedfertig and this office on March 24, 2023. 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,

Steven Treat, Esq. SPR23/0503 Page 3 March 29, 2023 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. Under Exemption (a), the department cites G. L. c. 119, §§ 51E and 51F, which provide in pertinent parts: 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. Pursuant to chapter 18C, the child advocate shall have access to these reports. 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; provided, however, that the department, upon request, may release this data and information to 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. The commissioner shall establish rules and regulations governing the availability of such data and information. Pursuant to chapter 18C, the child advocate shall have access to the information in the registry. G. L. c. 119, § 51F. The Department also cites G. L. c. 112, §§ 135-135B. Section 135A provides in pertinent

Steven Treat, Esq. SPR23/0503 Page 4 March 29, 2023 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. Additionally, in its responses, the Department cites G. L. c. 66A (limiting release of certain data), 110 CMR 12.00 (regulating the release of Department records), 42 USC § 671(a)(8) (governing state plans for foster care and adoption assistance), and 45 CFR § 205.50 (safeguarding information for financial assistance programs). 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. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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. Exam’r, 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 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

Steven Treat, Esq. SPR23/0503 Page 5 March 29, 2023 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. Burden of Specificity In its March 24th response, the Department argues that “due to the constraints of information and data pursuant to G.L. c. 119, § 51F, [the Department] would be violating the privacy rights of the child and/or the family if it publicly disclosed that such investigation records exist in response to a public records request for information pertaining to a named child or individual.” Based on the Department’s responses, I find the Department has not met its burden in responding to this request. Specifically, it is unclear what records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (a) and (c), and the statutes cited in its responses. Further, the Department must explain with specificity how such exemptions apply to the withheld records. 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). Conclusion Accordingly, the Department is ordered to provide Attorney Friedfertig with a response to his 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.

Steven Treat, Esq. SPR23/0503 Page 6 March 29, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Devon Friedfertig, Esq.