Todd Wallack v. Human Resources Division (SPR 20230712)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2023 SPR23/0712 Michele M. Heffernan, Esq. General Counsel Massachusetts Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Human Resources Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2023, Mr. Wallack requested “[a]ny sexual harassment complaints filed with or forwarded to the Investigations Center of Expertise in the Human Resources Division since Jan. 5, 2023.” Prior Appeal This request was the subject of a previous appeal. See SPR23/0679 Determination of the Supervisor of Records (April 12, 2023). The Division responded on April 10, 2023. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR23/0679, 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(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 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

Michele M. Heffernan, Esq. SPR23/0712 Page 2 April 25, 2023 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 Division’s April 10th Response In its April 10, 2023 response, the Division cited Exemption (c) to withhold the responsive records. 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. 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. Sch. 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 Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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. 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

Michele M. Heffernan, Esq. SPR23/0712 Page 3 April 25, 2023 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. In its response, the Division advised, “[u]nder well-established law ‘personnel and medical files or information’ are absolutely exempt from disclosure. Complaints of sexual harassment fall squarely within personnel files or information requiring an absolute exemption. ‘[C]ore categories of personnel information that are ‘useful in making employment decisions’ regarding an employee’ are not subject to disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003).” In further support, the Division opined, ‘[a]n agency need not consider the balancing of public and privacy interests required by the second clause of exemption (c). In finding that a disciplinary report was exempt ‘personnel information,’ the Wakefield court stated the inquiry was ‘limited to ‘whether the records sought are or contain [personnel files or information].’ Id. (citations omitted).” The Division further asserted, “[t]here is no question that the details of these complaints contain intimate details of a highly personal nature. Alleged victims of sexual harassment share highly personal details and feelings which appear in these reports. In addition, being cited as a Respondent in a complaint could bring great embarrassment and have a negative impact on the employee’s career or other future opportunities. There is no question that the disclosure of these details would result in a personal embarrassment and could have devastating results if released. Redaction is not a satisfactory solution to this request. There is no way to segregate the information. In addition, disclosing information with such personalized and specific facts could lead to the identification of the individual employees as the requestor is an employee of the agency. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (concluding that medical statements, even without other particular identifying details, creates a grave risk of indirect identification).” In camera inspection In order to facilitate a determination as to the applicability of the Division’s Exemption (c) claim to withhold the requested records pursuant to Exemption (c) of the Public Records Law, the Division must provide this office with an un-redacted copy of the responsive records for in camera inspection. 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 record. See 950 C.M.R. 32.08(4). 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)

Michele M. Heffernan, Esq. SPR23/0712 Page 4 April 25, 2023 (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 be subject to disclosure. Order Accordingly, the Division is ordered to provide this office with an un-redacted copy of the requested records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack