Chris Van Buskirk v. Executive Office of Health & Human Services (SPR 20233004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2023 SPR23/3004 Cole Cagle Records Access Officer Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 Dear Mr. Cagle: I have received the petition of Chris Van Buskirk, of the Boston Herald, appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On December 7, 2023, Mr. Van Buskirk requested, “[a]ny contracts between the Office and Eastern Nazarene College for the operation of a ‘Family Welcome Center’ and shelter site within the past five years.” On December 12, 2023, the Office provided a response. Unsatisfied with the Office’s response, Mr. Van Buskirk petitioned this office and this appeal, SPR23/3004, 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. 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

Cole Cagle SPR23/3004 Page 2 December 27, 2023 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 Office’s December 12th Response In its December 12, 2023 response, the Office identified one contract responsive to the request which it is withholding in its entirety pursuant to Exemptions (c) and (n) of the Public Records Law. 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. 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. 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). 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).

Cole Cagle SPR23/3004 Page 3 December 27, 2023 In its response, the Office states that disclosure would constitute, “[an] unwarranted invasion of personal privacy.” Based on the Office’s response, it is unclear how the record contains intimate details of a highly personal nature or how disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide supporting information with respect to the balancing test which examines whether the public interest in obtaining the requested records outweighs the seriousness of any invasion of privacy. The Office must clarify these matters. Further, the Office 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). Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L c. 4, § 7(26)(n). Under Exemption (n), a records custodian may withhold a record if its release is likely to jeopardize public safety or cyber security. It is the duty of the custodian to exercise “reasonable judgment” to determine whether disclosure of the record may impact public safety. Id. Exemption (n) requires a two prong analysis. People for the Ethical Treatment of Animals (PETA) v. Dep’t. of Agric. Res., 477 Mass. 280, 286 (2017). The first prong examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute”; specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” Id. at 289-90. With regard to a prong one analysis, if the requested record is not expressly listed in the text of the exemption, then Exemption (n) does not apply unless the record is related to one of the statute’s enumerated examples. See PETA, 477 Mass. at 288 (“we must interpret the ‘any

Cole Cagle SPR23/3004 Page 4 December 27, 2023 other records’ clause as embracing only those records that, when released, are ‘likely to jeopardize public safety [or cyber security]’ in a similar way to one of the examples listed in exemption (n)”). The second prong examines whether, in the record custodian’s reasonable judgment, the requested records are factually and contextually likely to jeopardize public safety or cyber security. Id. at 289-90. However, the “reasonable judgment” language in Exemption (n) does not imply a heightened level of deference to the records custodian’s initial denial. Id. at 291. “[T]he primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records . . . to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. at 289-90. In its response, the Office states that disclosure would “jeopardize public safety.” Based on the Office’s response, it is unclear how the record resembles the records listed as examples in the statute as contemplated in PETA. See PETA, 477 Mass. at 289. Particularly, it is unclear how the record resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the record is the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). If the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden is on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety. See Id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the Office did not provide factual heft to support the withholding of the contract pursuant to Exemption (n). The Office has not sufficiently explained how disclosure of the record is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Office must clarify these matters. As a result, I find that the Office did not meet its burden of specificity in claiming Exemptions (c) and (n) of the Public Records Law to withhold the requested record. Conclusion Accordingly, the Office is ordered to provide Mr. Van Buskirk 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. Mr. Van Buskirk may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Cole Cagle SPR23/3004 Page 5 December 27, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Chris Van Buskirk