Ryan Phenegar v. Executive Office of Labor and Workforce Development - Department of Family and Medical Leave (SPR 20240453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2024 SPR24/0453 Andrew McIlvaine, Esq. Deputy General Counsel Department of Family and Medical Leave Executive Office of Labor and Workforce Development 100 Cambridge Street, Suite 500 Boston, MA 02114 Dear Attorney McIlvaine: I have received the petition of Ryan Phenagar appealing the response of the Department of Family and Medical Leave (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2024, Mr. Phenagar requested, “[s]omeone has been fraudulently applying for FMLA for myself, and my girlfriend using pictures of our drivers[’] licenses. I was wondering if I could have access to the picture they are using […] I was also told they filed it online, I was hoping to get the IP address, or any information so I can forward it to the pro[p]er authorities.” The Department provided a response on February 8, 2024 and supplemented the response on February 26, 2024. Unsatisfied with the Department’s responses, Mr. Phenagar petitioned this office and this appeal, SPR24/0451, was opened as a result. Status of Requestor In his appeal petition, Mr. Phenagar indicates that he is seeking records submitted under his name and specific to himself. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Phenagar’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Andrew McIlvaine, Esq. SPR24/0453 Page 2 February 27, 2024 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. See 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 February 8th and February 26th responses In its February 8, 2024 response, the Department withheld records pursuant to a statute and stated, “[b]ased on M.G.L. c. 175M, § 8(e), the [Department] is not currently able to produce any documents.” In its February 26, 2024 supplemental response, the Department stated, “[p]ublic records do not include material or data that is specifically or by necessary implication exempted from disclosure by statute. M.G.L. c. 4, sec. 7(26(a) … Pursuant to M.G.L. c. 175M, sec. 8(e)[.]” Current Appeal In his appeal, Mr. Phenagar stated, “…I believe these records should not be confidential to myself, as they involve fraudulent activity submitted under my name, address, and driver’s license number, inherently making them records submitted by ‘myself’.” 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).

Andrew McIlvaine, Esq. SPR24/0453 Page 3 February 27, 2024 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute, G. L. c. 175M, § 8(e), provides in pertinent part: Information contained in the files and records pertaining to an individual under this chapter shall be confidential and not open to public inspection, other than to public employees in the performance of their official duties; provided, however, that an individual or authorized representative of an individual may review the individual’s records or receive specific information from the records upon the presentation of the individual’s signed and dated authorization, which shall remain in force and effect until revoked in writing by such individual. G. L. c. 175M, § 8(e). In its response, the Department stated: …Massachusetts’ Paid Family and Medical Leave (PFML) law, specifically M.G.L. c. 175M, § 8(e), deems the information contained in the files and records pertaining to an individual under the PFML law to be confidential and not subject to a public inspection through a public record request – except that an individual or their authorized representative may access the individual’s records upon presentation of the individual’s signed and dated authorization. Based on M.G.L. c. 175M, § 8(e), the DFML is not currently able to produce any of the documents you have requested. The Department further provided instructions on the process necessary for an individual to review their own records or receive specific information with regards to their records stating, “…you may complete the enclosed Release of Information Form and return it with a color copy

Andrew McIlvaine, Esq. SPR24/0453 Page 4 February 27, 2024 of the front and back of one of the identification documents listed on the form. Once the completed Release of Information For Claimant Form and the necessary identification documentation are received, the DFML can process the release request.” Based upon the Department’s responses, and as the records are restricted from disclosure in its entirety by the Legislature under G. L. c. 175, § 8(e), as it operates through Exemption (a), I find the Department has met its burden in responding to this request under the Public Records Law. See G. L. c. 175, § 8(e) (providing that “these files and records pertaining to an individual under this chapter shall be confidential and not open to public inspection reports”). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Phenagar 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Ryan Phenagar