Good Citizen v. Department of Unemployment Assistance (SPR 20232407)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2023 SPR23/2407 John P. Cronin, Esq. Assistant Chief Counsel Department of Unemployment Assistance 19 Staniford Street Boston, MA 02114 Dear Attorney Cronin: I have received the petition of Good Citizen (“requestor”) appealing the response of the Department of Unemployment Assistance (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2023, the requestor sought the following records: [1.] All incoming calls and conversations made from [a specific phone number] to customer service; [2.] Policy on how calls are handled when a supervisor is asked for by a citizen or claimant; [3.] Every name, position, salary, date of employment and any sign[ed] contracts that each person [he] [has] spoken to for the month of August and September including today’s conversation where [he] was hung up on and never received a call back; [4.] All voice calls to the [D]epartment regarding [a specific phone number]; and [5.] Information on how a citizen or claimant can file written complaints against members of [the] [D]epartment. The Department provided a response on September 26, 2023, citing Exemption (a) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(a). Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR23/2407, 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

John P. Cronin, Esq. SPR23/2407 Page 2 October 24, 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. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s September 26th response In its September 26, 2023 response, the Department cited G. L. c. 151A, § 46(a), as it operates through Exemption (a) of the Public Records Law to withhold the requested records. See G. L. c. 4, § 7(26)(a). 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

John P. Cronin, Esq. SPR23/2407 Page 3 October 24, 2023 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Citing Exemption (a), the Department stated, “. . . records responsive to your request, to the extent they exist, cannot be disclosed because they are not public records within the meaning of G. L. c. 4, §7 (26)(a) and G. L. c. 151A, § 46(a). G. L. c. 151A, § 46(a) provides in relevant part: Except as provided in this section, information secured pursuant to this chapter is confidential and for the exclusive use and information of the department in the discharge of its duties. Such information is not a public record nor admissible in any action or proceeding, except as provided in this section. This information is absolutely privileged and shall not be made the subject matter or basis in any action of slander, libel or emotional distress. Based on the Department’s response, it is unclear how the records it is withholding fall within the type of records contemplated in G. L. c. 151A, § 46(a). The Department merely cites the statute without any further explanation as to the statute’s applicability to the responsive records. Further, based on the Department’s response, it is unclear what type of records are in its possession that it is withholding from disclosure. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the Department must identify what records it is withholding under G. L. c. 151A, § 46(a). Further, it is unclear why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide the requestor 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 the response to this office at pre@sec.state.ma.us.

John P. Cronin, Esq. SPR23/2407 Page 4 October 24, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Good Citizen