Louis H. Matthews v. Department of Correction (SPR 20243024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2024 SPR24/3024 Kate Silvia Communications Director Department of Correction Legal Division 50 Maple Street Milford, MA 01757 Dear Director Silvia: I have received the petition of Louis H. Mathews appealing the response of the Department of Correction (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 26, 2024, Mr. Mathews requested “… a copy of the Industrial Accidents Package that [a named individual] filed as a result of injuries he suffered on June 30, 2024 …” The Department provided a response on October 8, 2024. Unsatisfied with the Department’s response, Mr. Mathews petitioned this office and this appeal, SPR24/3024, 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. Att’y 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

Kate Silvia SPR24/3024 Page 2 November 21, 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 Department’s October 8th Response In its October 8, 2024 response, the Department withheld records responsive to Mr. Mathews’ request, citing Exemptions (a) and (c) of the Public Records Law. Current Appeal In his October 22, 2024 petition to this office, Mr. Mathews objects to the withholding of responsive records, contending that the “… information does not pertain to [the named individual’s] medical records or directly to his actual health and his personal information is available for public scrutiny.” Mr. Mathews further alleges that “[a]ll [of the named individual’s] private information may be redacted and thereby protected … the sought information only does pertain to his extinguishing the fire and procedure for doing so.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its October 8, 2024 response, the Department states that the responsive records contain personal data. The Department further states:

Kate Silvia SPR24/3024 Page 3 November 21, 2024 The DOC may “not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought.” G.L. c. 66A, § 2(b). “A governmental entity may use exemption (a) as a basis for withholding requested materials where the language of the underlying exempting statute suggests that the public’s right to inspect records under the Public Records Law is restricted.” Opinion of the Supervisor of Public Records, SPR01/388; SPR01/586, citing Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979). Fair Information Practices Act (FIPA) The Department is advised that FIPA and the Public Records Law are to be construed to work together, consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. Based on the Department’s response, it is unclear how the cited statute specifically or by necessary implication permits the Department to withhold the responsive records. Please be advised that for Exemption (a) to apply, said statute or regulation must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Department 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.

Kate Silvia SPR24/3024 Page 4 November 21, 2024 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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). 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). 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 October 8, 2024 response, the Department states: Please be advised that dissemination of this information would violate G.L. c. 4, § 7 (26)(c), which exempts “personnel and medical files or information, also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Industrial Accident packages contain medical information and are therefore not a public record. To the extent the responsive records contain the medical information of a specifically identified individual, such portions may be withheld under Exemption (c) of the Public Records Law. However, I find that the Department has not met its burden to demonstrate that the records, in their entirety, constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Additionally, it is uncertain whether segregable portions can be provided. See G. L. c. 66, § 10(a); 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). The Department must clarify these matters.

Kate Silvia SPR24/3024 Page 5 November 21, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Mathews with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mathews may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Louis H. Mathews