Ray Fuschetti v. Department of Children and Families (SPR 20242428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 10, 2024 SPR24/2428 Steven Treat, Esq. Records Access Officer Assistant General Counsel Department of Children and Families 600 Washington Street, 6th Floor Boston, MA 02111 Dear Attorney Treat: I have received the petition of Raymond Fuschetti, of NBC Boston, appealing the response of the Department of Children and Families (Department/DCF) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2024, Mr. Fuschetti requested “. . . the following information pertaining to [an identified individual] ... for the past 3 years”: [1] Their current employment status[;] [2] Start and ending date of position[;] [3] A number of cases they were assigned per year[;] [4] Complaints made against this employee[;] [5] Actions or disciplinary actions made against this employee[;] [6] What their assigned shifts were (Ex. if they were Monday to Friday 9a-5p for the first six months of 2023)[;] [7] Their employment application[;] [8] Resignation letter or termination notice[.] The Department responded on August 21, 2024. Unsatisfied with the response, Mr. Fuschetti petitioned this office and this appeal, SPR24/2428, 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

Steven Treat, Esq. SPR24/2428 Page 2 September 10, 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 Department’s August 21st Response In its August 21, 2024 response, the Department cited Exemption (c) of the Public Records Law to withhold records responsive to Item 3 of the request. The Department further indicated that it did not possess records responsive to Items 1, 2, and 4 - 8 of the request. Current appeal In his appeal, Mr. Fuschetti states, “[t]he specific request I’m looking to appeal is for the number of cases [an identified individual] was assigned per year for the last three years as a DCF employee... this information should be provided as an initial effort to inform the public if DCF was holding [an identified individual] accountable and making efforts to ensure she was completing her caseload while working as a full time DCF employee.” 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.

Steven Treat, Esq. SPR24/2428 Page 3 September 10, 2024 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) (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 Department advised, “[w]ith the exception of your request for number of cases assigned per year, your request seeks records or information found in the personnel file. Accordingly, DCF does not have responsive records in its possession, custody or control. Pursuant to the above, EOHHS is the proper custodian of these records. Please note certain personnel information is exempt from disclosure pursuant to G. L. c. 4, § 7(26)(c) (‘exemption c’). Additionally, personnel information that is not protected from disclosure under the first clause of exemption c may nevertheless be protected from disclosure by exemption c’s second clause, which prohibits the release of ‘any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy’. See G. L. c. 4, § 7(26)(c). Regarding your request for ‘number of cases [that] were assigned per year’, DCF has withheld this information as it constitutes personnel information exempt from disclosure pursuant to exemption c.” Based on the Department’s response, it is unclear how the requested information constitutes one of the core categories of personnel information that is useful in making employment decisions regarding an employee. It is additionally uncertain how the information

Steven Treat, Esq. SPR24/2428 Page 4 September 10, 2024 contains 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 Department 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. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Fuschetti 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. Fuschetti may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Raymond Fuschetti