Rick Sobey v. Executive Office of Housing and Livable Communities (SPR 20242103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2024 SPR24/2103 Adrian Walleigh, Esq. Counsel, Public Records Officer Executive Office of Housing and Livable Communities 100 Cambridge Street Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Rick Sobey, of the Boston Herald, appealing the response of the Executive Office of Housing and Livable Communities (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 24, 2024, Mr. Sobey requested the following records: [1] ... all EOHLC “Serious Incident Reports” for the Emergency Assistance shelter program for 2024 so far. [2] ... all reports involving DCF being notified for incidents related to the Emergency Assistance shelter program for 2024 so far. On July 18, 2024, the Office provided a response. Unsatisfied with the Office’s response, Mr. Sobey petitioned this office and this appeal, SPR24/2103, 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 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

Adrian Walleigh, Esq. SPR24/2103 Page 2 August 7, 2024 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 Office’s July 18th Response In its July 18, 2024 response, the Office stated that it “... found records in its possession which are responsive to your request.” The Office cited Exemptions (c) and (n) of the Public Records Law to withhold the records responsive to the request. The Office further advised that “[t]he SIRs contain a wide variety of information relating to the individuals involved, the locations involved as well as other highly sensitive information about shelter residents [and thus the Office was] ... providing responsive information in the form of aggregate data on Serious Incident Reports (SIRs), disaggregated by type of shelter, date, and the authority called regarding an incident.” Current appeal In his appeal, Mr. Sobey states, “... the public has a right to know the serious incidents that have taken place in the taxpayer-funded shelters. The state should redact the personal details of the individuals involved, and that would alleviate the privacy and public safety concerns. I am appealing the denial of my public records request.” 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 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

Adrian Walleigh, Esq. SPR24/2103 Page 3 August 7, 2024 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). 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 Office asserts, “[t]he records themselves are being withheld pursuant to the Privacy Exemption, under sub-clause (c) ... which exempts the disclosure of personnel and medical information, as well as data, that if disclosed, would constitute an “unwarranted invasion of personal privacy. The SIRs contain a wide variety of information relating to the individuals involved, the locations involved as well as other highly sensitive information about shelter residents.” Based on the Office’s response, it is unclear how the records, in their entirety, contain 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 Office did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. 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

Adrian Walleigh, Esq. SPR24/2103 Page 4 August 7, 2024 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 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 asserts, “[t]he records themselves are being withheld pursuant to the Public Safety Exemption under subclause (n) of clause 26 of G.L. c. 4, § 7.” Based on the Office’s response, it is unclear how the requested records resemble the types of records listed in the statute, nor how the information is one a terrorist would find useful to maximize damage. PETA, 477 Mass. at 289. Where the records bear little resemblance to the types listed in the statute, the burden on the custodian is correspondingly at its highest. See id. at 290-91. Further, I find the Office has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the records is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. The Office must clarify these matters. Further, based on the Office’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law,

Adrian Walleigh, Esq. SPR24/2103 Page 5 August 7, 2024 a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Office withheld responsive records without identifying each of the records. Therefore, the Office must identify the record(s) it has in its possession that it withheld under Exemptions (c) and (n). Conclusion Accordingly, the Office is ordered to provide Mr. Sobey 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. Sobey may appeal the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Rick Sobey