Christopher R. O'Hara v. Division of Capital Asset Management and Maintenance (SPR 20230940)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2023 SPR23/0940 Christopher D. Guerin, Esq. Records Access Officer Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Christopher R. O’Hara, Esq., of Todd & Weld, LLP, appealing the response of the Division of Capital Asset Management and Maintenance (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2023, Attorney O’Hara requested email correspondences from specific Division employees containing a list of search terms, as well as the following records: [1.] Any and all documents between the dates of April 1, 2018 and the present related to the procurement, assignment and/or payment for legal services from Adelson, Loria & Weisman P.C. [2.] Any and all documents regarding or relating to any payments made by DCAMM, or on behalf of DCAMM to [specific individual] between the dates of December 1, 2019 and the present. [3.] Any settlement agreements, and any and all documents regarding or relating to any settlement agreement, by and between [a specific individual] and DCAMM. [4.] Any settlement agreements, and any and all documents regarding or relating to any settlement agreement, to which DCAMM is/was a party and dated between September 29, 2020 and May 10, 2022. [5.] An accounting of all accrued but unused vacation pay for [a specific individual] as of May 10, 2022. 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

Christopher D. Guerin, Esq. SPR23/0940 Page 2 May 23, 2023 The Division responded on April 25, 2023. Unsatisfied with the Division’s response, Attorney O’Hara petitioned this office, and this appeal, SPR23/0940, 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 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 25th response In its April 25, 2023 response, the Division provided records in response to the last item of Attorney O’Hara’s request. The Division cited active litigation and Exemption (c) of the Public Records Law to withhold the remaining 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. 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

Christopher D. Guerin, Esq. SPR23/0940 Page 3 May 23, 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). 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 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 April 25, 2023 response, the Division stated the following: Notwithstanding the foregoing, the requested records are furthermore being withheld pursuant to Section 7(26)(c) of G.L. c. 4 (the “Privacy Exemption”)….In the instant matter, your request includes non-public records relating to specifically named current or past employees and which contain content addressing employee work evaluations, disciplinary action, and promotion, demotion or termination information pertaining to such employees as well as health and medical information of such personal and intimate nature the disclosure of which would result in embarrassment to the named individual. The public interest in disclosure does not substantially outweigh the individual’s right to privacy with respect to this intimate information. See People for the Ethical Treatment of Animals (PETA) v. Dept. of Agricultural Resources, 477 Mass. 280, 291 (2017). Based on the Division’s response, it is unclear how the withheld records constitute intimate details of a highly personal nature. It is additionally uncertain whether any of that 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. The Division must clarify these matters. Further, it is not clear how the records can be withheld in their entirety. The Division must clarify whether segregable portions can be provided. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Christopher D. Guerin, Esq. SPR23/0940 Page 4 May 23, 2023 Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its April 25, 2023 response, the Division stated the following: We understand your firm represents [a specific individual], a former employee of DCAMM, and that one or more civil actions have been brought by [the specific individual] against individuals, DCAMM and/or the Commonwealth. Moreover, we understand this litigation relates directly to events which may have been memorialized in the sought after records and that this litigation is ongoing. As such, the requested records relate to ongoing active litigation and would customarily be available through discovery. Absent further information, it is unclear how the requested records relate to active litigation. The Division must clarify. Conclusion Accordingly, the Division is ordered to provide Attorney O’Hara 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 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney O’Hara may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Christopher R. O’Hara, Esq.