Devon Friedfertig v. Massachusetts Department of Children and Families (SPR 20231134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2023 SPR23/1134 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. See 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]. Previous Appeal This request was the subject of a previous appeal. See SPR23/0503 Determination of the Supervisor of Records (March 29, 2023). In my March 29th determination, I ordered the Department to identify the records it intends to withhold and to clarify its claims under Exemptions (a) and (c) of the Public Records Law. Subsequently, the Department responded on April 12, 2023. Unsatisfied with the Department’s response, Attorney Friedfertig further appealed, and this case was opened as a result. 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. SPR23/1134 Page 2 June 13, 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(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 April 12th Response In its April 12, 2023 response, the Department identifies “case files and reports” and cites Exemption (a) of the Public Records Law, numerous statutes and regulations, and Exemption (c) for withholding responsive records. See G. L. c. 4, § 7(26)(a), (c). 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, 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

Steven Treat, Esq. SPR23/1134 Page 3 June 13, 2023 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 119, §§ 51E and 51F 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. In its April 12th response, the Department states that it “identified the following categories of records that would be potentially responsive to [Attorney Friedfertig’s] request: case files and reports prepared under sections G.L. c. 119, §§ 51A to 51E pertaining to the named individuals and referenced drowning fatality.” With regard to the statutes cited above, the Department argues the following: These statutes unambiguously prohibit public disclosure of files, reports, data and information pertaining to individual DCF Case Files, as these records, data and information “shall be confidential.” DCF may only provide Case Files, reports,

Steven Treat, Esq. SPR23/1134 Page 4 June 13, 2023 data and information pertaining to DCF investigations to authorized individuals and entities enumerated in statute.... As [Attorney Friedfertig’s] request seeks Case Files, data and information pertaining to a named individual, irrespective of the specified incident, any records that may exist must be withheld as these categories of records are confidential pursuant to G. L. c. 119, §§ 51E, 51F and therefore, exempt from public disclosure under Exemption (a). Where the Department has indicated that it is withholding the types of records contemplated under G. L. c. 119, §§ 51E and 51F, I find that the Department may properly withhold the responsive records pursuant to Exemption (a) of the Public Records Law and the statutes cited above. Other Statutes and Regulations In its April 12th response, the Department also cites G. L. c. 112, §§ 135-135B (limiting disclosure of information acquired by social workers), 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). Where the Department may properly withhold the records under Exemption (a) and G. L. c. 119, §§ 51E and 51F, I decline to address the applicability of the other statutes and regulations cited by the Department in its response. 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

Steven Treat, Esq. SPR23/1134 Page 5 June 13, 2023 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). 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. Under Exemption (c), the Department argues the following: Case Files and data associated with individual case files is withheld under Exemption (c) as these records and data are private information, the disclosure of which constitutes an unwarranted invasion of personal privacy. Case files and associated data is of a highly personal nature and contains details related to allegations and investigations of neglect, physical abuse and sexual abuse of children. Case Files, data and information specific to individual cases must be withheld to protect the minor victims of the investigations from the stigma that may be associated with having parents or guardians who are accused of being unfit.... The privacy interests of the children and families involved in the investigation outweigh the public interest in disclosure of Case Files, therefore, these records are exempt from public records law pursuant to Exemption (c). Where the department may withhold the responsive case files under Exemption (a) and G. L. c. 119, §§ 51E and 51F, as discussed above, I decline to address the Exemption (c) claims made by the Department. Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Friedfertig is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Steven Treat, Esq. SPR23/1134 Page 6 June 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Devon Friedfertig, Esq.