Michael Saccone v. Executive Office of Health & Human Services (SPR 20242350)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2024 SPR24/2350 Patricia M. Scanlan, Esq. Primary Records Access Officer Executive Office of Health and Human Services One Ashburton Place Boston, MA 02108 Dear Attorney Scanlan: I have received the petition of Michael Saccone 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 August 1, 2024, Mr. Saccone requested, “...resumes for all EOHHS class and compensation employees.” On August 16, 2024, the Office provided a response. Unsatisfied with the Office’s response, Mr. Saccone petitioned this office and this appeal, SPR24/2350, 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. If there are any fees associated with a response a written, good faith estimate must be 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

Patricia M. Scanlan, Esq. SPR24/2350 Page 2 September 4, 2024 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 August 16th Response In its August 16, 2024 response, the Office denied the request pursuant to Exemption (c) of the Public Records Law. 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 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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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)

Patricia M. Scanlan, Esq. SPR24/2350 Page 3 September 4, 2024 (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 response, the Office opined, ... EOHHS withholds the responsive records, as employee resumes are exempt from disclosure pursuant to the first clause of G.L. c. 4, § 7, cl. 26(c) (“exemption (c)”), as they are personnel records submitted to EOHHS on MassCareers as part of the job application process and are used in making employment decisions. “Core categories of personnel information that are ‘useful in making employment decisions’ regarding an employee” may be withheld from disclosure. Worcester Telegran & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). Job applications are a “core category” of personnel records. Id. citing Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000) (“‘personnel [file] or information’… includes, at a minimum, employment applications . . .These constitute the core categories of personnel information that are ‘useful in making employment decisions regarding an employee.’”). In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Office to withhold responsive records, the Office must provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Patricia M. Scanlan, Esq. SPR24/2350 Page 4 September 4, 2024 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Michael Saccone