Gina M. Heck v. Human Resources Division (SPR 20242933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 12, 2024 SPR24/2933 Michele Heffernan, Esq. General Counsel Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Gina M. Heck appealing the response of the Human Resources Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2024, Ms. Heck requested the following “... 5 complaints … filed with the Center of Expertise/COE and a complaint filed on my behalf”: [1] COM0004263 on June 4, 2023[;] [2] COM0004532 on September 12, 2023[;] [3] COM0004685 on November 16, 2023[;] [4] COM0004833 on January 18, 2024[;] [5] COM0004911 on February 16, 2024[.] The Division responded on October 23, 2024. Unsatisfied with the response, Ms. Heck petitioned this office and this appeal, SPR24/2933, 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

Michele Heffernan, Esq. SPR24/2933 Page 2 November 12, 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 Division’s October 23rd Response In its October 23, 2024 response, the Division cited Exemptions (b), (c), and (f) of the Public Records Law to withhold the requested records in their entirety. Current appeal In her appeal, Ms. Heck states, “[t]he agency has declined to provide even redacted records. There is a compelling public interest in knowing the volume of complaints, type of complaints and how the state is handling them. As the Supervisor previously found, the agency has been unable to point to an exemption or statute that allows the agency to withhold the records in their entirety.” 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. 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 Division asserts, “HRD also relies upon Exemption ‘B’ as the complaints and associated records are related to the internal personnel rules and practices of the Executive Department agencies.”

Michele Heffernan, Esq. SPR24/2933 Page 3 November 12, 2024 Based on the Division’s response, I find the Division did not explain how the records are solely related to its internal personnel rules and practices. Also, the Division did not provide supporting information to demonstrate how disclosure of the records would hinder the proper performance of the Division’s necessary government function. The Division must clarify this matter. 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. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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).

Michele Heffernan, Esq. SPR24/2933 Page 4 November 12, 2024 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 Division advised “[c]omplaints of discrimination or harassment are not public record. Under well-established law ‘personnel and medical files or information’ are absolutely exempt from disclosure. Complaints that may result in disciplinary action, including those of sexual harassment, discrimination or retaliation fall squarely within personnel files or information requiring an absolute exemption.” The Division further asserted, There is no question that the details of these complaints contain intimate details of a highly personal nature. Employees related to complaints of harassment or discrimination share highly personal details and feelings which appear in the complaints or reports. In addition, being cited as a Respondent in a complaint could bring great embarrassment and have a negative impact on the employee’s career or other future opportunities. There is no question that the disclosure of these details would result in a personal embarrassment and could have devastating results if released. Redaction is not a satisfactory solution to this request. There is no way to segregate the information. In addition, disclosing information with such personalized and specific facts could lead to the identification of the individual employees as the requestor is an employee of the agency. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (concluding that medical statements, even without other particular identifying details, creates a grave risk of indirect identification). The Appeals Court has recognized there are circumstances when a record must be withheld in its entirety because even with redactions it could lead to the disclosure of an employee’s identity. Logan v. Commissioner of DIA, 68 Mass. App. Ct. 533 (2007). Although portions of the records my fall under Exemption (c), it remains unclear how all the records constitute intimate details of a highly personal nature. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Exemption (f) Exemption (f) permits the withholding of:

Michele Heffernan, Esq. SPR24/2933 Page 5 November 12, 2024 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 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. In its response, the Division states, “HRD also relies on Exemption ‘F’ as the complaints are related to a request for an investigation. HRD believes that maintaining the integrity of the investigation, the confidential nature of the outcome, the identity of participants, and protection of retaliation outweigh the public’s interest.” Based on the Division’s response, it is unclear how all the records are related to an investigation and whether the investigation remains ongoing. Also, the Division did not provide any supporting information to demonstrate how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Further, it is uncertain how identifying information of complainants or voluntary witnesses cannot be redacted from the responsive records and segregable portions provided. See Reinstein, 378 Mass. at 289- 90 (the statutory exemptions are narrowly construed and are not blanket in nature). Further, based on the Division’s response, it is unclear if the Division possesses each of the five complaints requested by Ms. Heck. 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). Therefore, the Division must identify the record(s) that it has in its possession that the Division withheld under Exemptions (b), (c), and (f). Conclusion Accordingly, the Division is ordered to provide a response to Ms. Heck in a manner consistent with the Public Records Law, its Regulations and this order within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic

Michele Heffernan, Esq. SPR24/2933 Page 6 November 12, 2024 copy of the response to this office at pre@sec.state.ma.us. Ms. Heck 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: Gina M. Heck