Colman Herman v. Division of Occupational Licensure (SPR 20241799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Office Manza Arthur Supervisor of Records July 3, 2024 SPR24/1799 Jessica L. Ellis, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: I have received the petition of Colman Herman appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 30, 2024, Mr. Herman requested, “... copies of any and all records related to actions taken that resulted in discipline that deal with the following events involving massage therapists.” [1] Sexual misconduct (SX) [2] Inappropriate conduct with a patient or client (IT) [3] Patient abuse I am seeking records that reveal the details of the incidents and the final dispositions of the cases. This is for the period March 12, 2024 to the present. Subsequently, Mr. Herman “narrowed the public records request on May 1, 2024.” The Division confirmed with Mr. Herman that the narrowed request included identified documents for each case number. The Division responded on May 1, 2024 and May 15, 2024. Unsatisfied with the responses, Mr. Herman petitioned this office and this appeal, SPR24/1799, 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

Jessica L. Ellis, Esq. SPR24/1799 Page 2 July 3, 2024 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 Division’s May 1st and May 15th Responses In its May 1, 2024 response, the Division stated, “[a] search produced four matters responsive to your request. Please specifically identify which of the below documents you would like.” The four matters included “list of the documents in each of the responsive case numbers.” In its May 15, 2024 response, the Division stated, “[the Division] contacted you via email with a list of the documents in each of the responsive case numbers. Your final revised request was confirmed via email that same day, and is as follows”: [1] 2023-00064-IT-ENF (22 documents) • Application for Complaint • Case Summary • Case Activity Sheet • Response [2] 2023-000098-IT-ENF (9 documents) • Application for Complaint • Executed Voluntary Surrender Agreement [3] 2023-000356-IT-ENF (14 documents) • Case Activity Sheet • Investigative Summary • Application for Complaint [4] 2023-000656-IT-ENF (50) • Voluntary Surrender Agreement • Application for Complaint • Investigative Information (5)

Jessica L. Ellis, Esq. SPR24/1799 Page 3 July 3, 2024 The Division produced the requested documents with redactions pursuant to Exemptions (a), (c), and (f) of the Public Records Law. Current appeal In his appeal, Mr. Herman states, “[t]hese claims, however, lack the specificity required by the public records law for properly claiming redactions.” 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the Division cited the Criminal Offender Record Information (CORI) Act, which states as follows: CORI . . . records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing,

Jessica L. Ellis, Esq. SPR24/1799 Page 4 July 3, 2024 incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its response, the Division states, “[r]ecords containing information under the Criminal Offender Record Information Act (‘CORI’) have been redacted as they are exempt from disclosure pursuant to G.L. c. 4, § 7(26)(a) . . . Records containing information regarding an identifiable individual and relating to the nature or disposition of a criminal charge(s) not dismissed before an arraignment have been redacted in full. G. L. c. 6, § 167. Dissemination of CORI to unauthorized individuals is prohibited pursuant to the Criminal Offender Record Information Act (See G. L. c. 6, § 167-178L; 803 CMR § 7.09(1)).” Based on the Division’s response, I find the Division has not met its burden to demonstrate how the requested records are exempt under the CORI Act. Specifically, it is unclear how these records constitute “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167 (emphasis added). 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.

Jessica L. Ellis, Esq. SPR24/1799 Page 5 July 3, 2024 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). When analyzing a privacy claim, there is 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 response, the Division asserts, “. . . personal addresses, personal phone numbers, personal email addresses, social security numbers, dates of birth, medical information, and any other highly personal information, has been redacted from the materials provided. We have also redacted information contained in the records regarding details of sexual assault that are of the highest degree of ‘intimate detail.’ G.L. c. 4, § 7(26)(c). The public interest in the disclosure of such intimate details of sexual assault does not outweigh the privacy interest associated with disclosure of the information.” To the extent that the records contain personal phone numbers, personal email addresses, and medical information that relates to a specifically named individual, I find the Division may permissibly withhold such portions from disclosure under Exemption (c). However, based on the Division’s response, it is unclear how the remaining redacted information, including personal addresses and dates of birth, constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Division did not provide any supporting information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential

Jessica L. Ellis, Esq. SPR24/1799 Page 6 July 3, 2024 investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the Division stated, “... complainant names have been redacted from the materials provided under this exemption...” To the extent that the Division redacted the identities of complainants, I find the Division has met its burden under Exemption (f) to redact such information from the records. Conclusion Accordingly, the Division is ordered to provide Mr. Herman with a response to his request, 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. Herman 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: Colman Herman