Todd Wallack v. Executive Office of Health & Human Services (SPR 20230980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2023 SPR23/0697; SPR23/0712 SPR23/0720; SPR23/0980 Michele Heffernan, Esq. General Counsel 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 from the following agencies: Executive Office of Energy and Environmental Affairs, Human Resources Division, Department of Transportation, and Executive Office of Health & Human Services the following records: Any sexual harassment complaints filed with or forwarded to the Investigations Center of Expertise in the Human Resources Division since Jan. 5, 2023. Prior Appeals This request was the subject of previous appeals. See SPR23/0712 Determination of the Supervisor of Records (April 25, 2023). In my April 25th determination, I ordered the Division to provide this office with an un-redacted copy of the responsive records for in camera inspection. On June 23, 2023, the Division provided the records. I thank the Division for its cooperation. Mr. Wallack has also appealed the responses from the other named agencies and these appeals: SPR23/0697; SPR23/0720 and SPR23/0980, were 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 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 Heffernan, Esq. SPR23/0697; SPR23/0712 Page 2 SPR23/0720; SPR23/0980 July 20, 2023 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 10th Response In its April 10, 2023 response, the Division cites Exemptions (b), (c) and (f) of the Public Records Law to withhold the requested records in their entirety. Current appeal In his appeal, Mr. Wallack states, “I have no objection to redacting the names and identifying information of victims. I also understand there may be circumstances where certain other details could be redacted, but don’t believe there is a basis for withholding the records in their entirety. It is not even clear how many complaints the agency has received and which ones are currently still under active investigation.” Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of lnformation Act). In its response, the Division stated, “... the complaints and associated records are related to the internal personnel rules and practices of the Executive Department agencies.”

Michele Heffernan, Esq. SPR23/0697; SPR23/0712 Page 3 SPR23/0720; SPR23/0980 July 20, 2023 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). 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). 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 asserts, “[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). Personnel information is absolutely

Michele Heffernan, Esq. SPR23/0697; SPR23/0712 Page 4 SPR23/0720; SPR23/0980 July 20, 2023 exempt from disclosure under the first clause of exemption (c). Wakefield, at 799-800. See generally Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et al., No. 1184CV01184A (Mass. Super. June 14, 2013).” The Division further asserted: [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). To impose any balancing test here would ‘render meaningless the Legislature’s expressed intent to create two distinct categories of information for exemption, with different standards for exemption established for each.’ Id. at 800. See also Globe Newspaper Co. v. Bos. Ret. Bd., 388 Mass. 427, 436 n. 15 (1983) (noting a public employee’s diminished expectation of privacy in matters concerning their employment is an important consideration under the second clause of exemption (c)). Where personnel information is absolutely exempt, there is no legal basis to consider whether a diminished expectation of privacy figures into the exemption (c) analysis. Records that could be withheld prior to the statute’s amendment should be permitted the same status under the current reading. [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. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential

Michele Heffernan, Esq. SPR23/0697; SPR23/0712 Page 5 SPR23/0720; SPR23/0980 July 20, 2023 investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. In its response, the Division asserts that “… the complaints are related to a request for an investigation.” In camera review Upon an in camera review of the Division’s records, I find that to the extent the records contain the names of specific individuals who filed a harassment claim and any identifying information, the information may be redacted. However, it is unclear how all the responsive records may be withheld in their entirety under Exemptions (b), (c) and (f) of the Public Records Law. See Reinstein, 378 Mass. at 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). Conclusion Accordingly, the Division is ordered to review the records, redact where necessary and provide the responsive records to Mr. Wallack in accordance with the Public Records Law, its Regulations and this order 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 this response to this office at pre@sec.state.ma.us. Mr. Wallack 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: Todd Wallack