Todd Wallack v. Human Resources Division (SPR 20231799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 17, 2023 SPR23/1799 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) and SPR23/0697; SPR23/0720 and SPR23/0980 Determination of the Supervisor of Records (July 20, 2023). In my July 20th in camera determination, I found that the Division had not met its burden to withhold the responsive records, in their entirety, under Exemptions (b), (c) and (f) of the Public Records Law. The Division responded on August 1, 2023. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR23/1799, 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 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. SPR23/1799 Page 2 August 17, 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 August 1st Response In its August 1, 2023 response, the Division stated that it ... respectfully disagrees with your ruling in the above-referenced matters. As the the Appeals Court determined in Logan c. Comm’r of the Department of Indust. Accidents, 68 Mass. App. Ct. 533 (2007) 68 Mass. App. Ct. 533 (2007) personal information is absolutely exempt from mandatory disclosure where files or information are of a personal nature and relate to a particular individual. The Court noted that “it would be burdensome and unnecessary to force the [public record holder] to redact the reports in order to extract the nugget of nonconfidential information.” citing to Globe Newspaper Co v. Chief Med. Examiner, 404 Mass. 132 (1989). The Human Resources Division declines to review, redact and produce the requested records. The disclosure of employee complaints of sexual harassment, even with their names redacted, will have a chilling effect on the employees reporting complaints and will increase the fear of retaliation as those who are accused of unlawful behavior will simply make a records request and will have the allegations at their disposal. This will also have a negative impact on the integrity of an investigation. The Human Resources Division believes your ruling will undermine the Commonwealth’s efforts to provide a safe workplace that is free of sexual harassment and retaliation. Current appeal In his appeal, Mr. Wallack states, “[t]he agency has declined to provide even redacted records. There is a compelling public interest in knowing the volume of complaints, type of complaints and how the state is handling them. As the Supervisor previously found, the agency has been unable to point to an exemption or statute that allows the agency to withhold the records in their entirety.” As previously stated, I find that to the extent the records contain the names or identifying information of specific individuals who filed a harassment claim, the information may be redacted. However, it is unclear how all the responsive records may be withheld in their entirety

Michele Heffernan, Esq. SPR23/1799 Page 3 August 17, 2023 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). See SPR23/0697; SPR23/0720 and SPR23/0980 Determination of the Supervisor of Records (July 20, 2023). Order Accordingly, the Division is ordered to review the records, redact where necessary and provide the responsive records to Mr. Wallack in a manner consistent 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 the 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