Patrick Banfield v. Executive Office of Health & Human Services (SPR 20242907)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2024 SPR24/2907 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 Patrick D. Banfield, Esq., of Banfield Law, appealing the response of the Executive Office of Health and Human Services (Office/EOHHS) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On July 23, 2024, Attorney Banfield requested the following: All documents and communications, including but not limited to emails, text messages, phone calls, calendar entries, reports and/or attachments, sent or received by [identified individuals] that reference, discuss, or relate to [an identified individual] in connection with job coaching, 360 reviews, discipline, separation from employment, and/or criticism of her leadership. To the extent the Commonwealth identifies M.G.L. c. 4, § 7(26)(c) as a basis to withhold documents, we have limited this request to records related to our client, [an identified individual] ... waives any privacy exemption that potentially applies to these records. Previous appeal This request was the subject of a previous appeal. See SPR24/2584 Determination of the Supervisor of Records (September 26, 2024). In my September 26th determination, it was my understanding that the Office intended to provide a further response to Attorney Banfield. The Office responded on October 18, 2024. Unsatisfied with the Office’s response, Attorney Banfield petitioned this office and this appeal, SPR24/2907, was opened as a result. 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. SPR24/2907 Page 2 November 6, 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. 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 Office’s October 18th Response In its October 18, 2024 response, the Office stated that “EOHHS conducted a search, which identified potentially responsive records.” The Office further asserted, “EOHHS responds to your appeal herein and supplements its response to your PRR. As discussed below, EOHHS maintain the privacy exemption still applies and asserts the internal personnel rules and practice exemption also applies.” The Office cites Exemptions (b) and (c) of the Public Records Law to withhold the records in their entirety. Current appeal In his appeal Attorney Banfield states, “[t]he public has a heightened interest in learning whether public officials are carrying out their duties and responsibilities fairly and in accordance with the law. There is nothing complicated about this dispute. HHS has decided to ignore its obligations under the Public Records Law.” Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding

Patricia M. Scanlan, Esq. SPR24/2907 Page 3 November 6, 2024 G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). In its response the Office asserts, “[t]he requested documents and communications relate solely to internal personnel rules and practices pertaining to employee reviews discipline and status as well as personnel practices regarding the provision of a job coaching. EOHHS must be able to communicate confidentially regarding performance, discipline and employment status in order to carry out its human resources related government functions.” Based on the Office’s response, it is unclear how all the requested records relate solely to its internal personnel rules and practices. Also, the Office did not provide supporting information to demonstrate how disclosure of the records would hinder the proper performance of the Office’s necessary government function. The Office must clarify these matters. 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

Patricia M. Scanlan, Esq. SPR24/2907 Page 4 November 6, 2024 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 October 18th response, the Offices advised, “[t]he requested records and/or information – related to [an identified individual] in connection with job coaching, 360 review, discipline, separation from employment and/or criticism of her leadership are of a highly personal nature, containing specific details regarding an identified individual and release of such information would constitute an unwarranted invasion of an individual’s privacy interests. The individual’s privacy interests outweigh the public’s interest in disclosure.” Based on the Office’s response, I find it has not met its burden to withhold the responsive records, in their entirety, under Exemption (c) of the Public Records Law. 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. The Office must clarify. Further, it is unclear what types of records the Office possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, 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 records it has in its possession that it withheld under Exemptions (b) and (c) of the Public Records Law.

Patricia M. Scanlan, Esq. SPR24/2907 Page 5 November 6, 2024 Conclusion Accordingly, the Office is ordered to provide Attorney Banfield 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. Attorney Banfield may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Patrick D. Banfield, Esq.