Tod Hebenton v. Secretary of the Commonwealth - Archives Division (SPR 20240040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2024 SPR24/0040 Valerie Connolly Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Tod Hebenton appealing the response of the Administrative Services Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 13, 2023, Mr. Hebenton requested “[w]ard of State record.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2967 Determination of the Supervisor of Records (December 22, 2023). The Division responded on November 2, 2023, December 1, 2023 and December 4, 2023. Unsatisfied with the responses, Mr. Hebenton petitioned this office and this appeal, SPR24/0040, 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. 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 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

Valerie Connolly SPR24/0040 Page 2 January 22, 2024 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 Division’s November and December Responses In its November 2, 2023 response, the Division advised that it “... has many records from the Framingham Reformatory that would be helpful for this research. The series you identified are actually available online on FamilySearch.org if you create a free account for yourself.” In its November 2, 2023, December 1, 2023 and December 4, 2023 responses, the Division claimed Exemptions (a) and (c) of the Public Records Law to withhold and redact certain information. Current appeal In his appeal, Mr. Hebenton stated, “I would like to further appeal the remaining redactions of medical information, mental health information, and youth offender information. This redacted information would be beneficial to me in understanding family medical history, family mental health history, and the impact of my great-grandmother’s convictions as a youth offender on her life and my family history. The redacted information dates back to the early 1900’s (1903-1925). It has no value to any other entity than me. My great-grandmother died in 1965. Her younger sister Katherine (Catherine) died in 1983. There are no other people listed in my great-grandmother’s birth family who are still alive.” 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 Attorney 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

Valerie Connolly SPR24/0040 Page 3 January 22, 2024 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Division cited G. L. c. 119, § 60A, indicating that the records are exempt from disclosure. G. L. c. 119, § 60A provides in pertinent part: The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. In its response, the Division stated that it “... redacted youth offender information related to [an identified individual] and her family according to MGL c. 119 §60A.” Based on the foregoing, I find the Division must clarify whether the youthful offender information arises under sections fifty-two to fifty-nine of the statute. See G. L. c. 119, § 60A. Exemption (c) Exemption (c) permits the withholding of: 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 sub clause 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.

Valerie Connolly SPR24/0040 Page 4 January 22, 2024 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., 388 Mass. at 438. 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). 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). 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). 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 December 4, 2023 response, the Division stated that it “...redacted medical and mental health information related to ... and her family according to MGL c. 4, § 7 (26) (c) . . .” To the extent that the records contain medical and mental health information that relates to a specifically named individual, I find the Division may permissibly withhold such portions from disclosure under Exemption (c). Conclusion Accordingly, the Division is ordered to provide Mr. Hebenton with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Hebenton may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Valerie Connolly SPR24/0040 Page 5 January 22, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Tod Hebenton