Todd Wallack v. Office of the Comptroller (SPR 20250569)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 27, 2025 SPR25/0569 Darian Roberts, Esq. Assistant General Counsel/Records Access Officer Office of the Comptroller One Ashburton Place Boston, MA 02108 Dear Attorney Roberts: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Office of the Comptroller (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 18, 2025, Mr. Wallack requested, “[r]ecords of state employee names, titles, agency, salaries, overtime, other cash compensation and total cash compensation that are missing from the public online CTHRU database but whose payroll information is in the possession of the state comptroller’s office for calendar years 2023 and 2024.” The Office responded on February 27, 2025. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR25/0569, was opened as a result. Subsequently, on March 11, 2025, I learned that the Office provided a further response dated March 6, 2025, to Mr. Wallack. Mr. Wallack appealed the subsequent response on March 12, 2025. 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 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

Darian Roberts, Esq. SPR25/0569 Page 2 March 27, 2025 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. Current appeal In his March 12, 2025 appeal, Mr. Wallack asserts, The agency withheld payroll information its entirety, citing exemption (a) and statutes MGL 66, § 10B. Specifically, the agency says it has withheld the names of thousands of state employees along with their department, title, salary, overtime and other annual compensation totals. But the statute does not mention state payroll records and the agency has presented no evidence the statute was ever intended to apply to the state payroll records. And most of the categories of information the agency withheld are not named in the statute, including the workers’ titles, agency name, salaries, overtime, other cash compensation and total cash compensation. In addition, the agency says it withheld the name, title, agency, salary, overtime and other annual compensation titles for any work-study employees employed by the state. The agency cites or 20 USC §1232g (FERPA). However, the federal FERPA law protects confidential educational records, not compensation for state employees. . . . I have no objection if the Office of the Comptroller redacts the names of work-study employees earning less than $50,000. Work-study jobs are typically part-time jobs paying $15-$20 per hour, so should be well under that threshold. It is arguably in the public interest to learn if any so-called work- study students are earning more than $50,000 a year in what are supposed to be part-time entry-level positions. The Office’s February 27th and March 6th Responses In its February 27, 2025 response, the Office cited Exemption (a) of the Public Records Law and specifically, G. L. c. 66, § 10B and 20 U.S.C. § 1232g, to withhold the requested records in their entirety. 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

Darian Roberts, Esq. SPR25/0569 Page 3 March 27, 2025 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, 154 (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 response, the Office cites G. L. 66, § 10B, which provides in pertinent part, The name, home address, telephone number and personal email address of a family member of any such personnel shall not be public records in the custody of the employers of the foregoing persons or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed. The home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name, home address, telephone number, personal email address or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. G. L. 66, § 10B. In its response, the Office also cites 20 U.S.C. § 1232g, the Family Educational Rights and Privacy Act (FERPA), which provides in pertinent parts, (b) Release of education records; parental consent requirement; exceptions; compliance with judicial orders and subpoenas; audit and evaluation of federally- supported education programs; recordkeeping (1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting

Darian Roberts, Esq. SPR25/0569 Page 4 March 27, 2025 the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following- ... (F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted; ... (2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection, unless— (A) there is written consent from the student’s parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student’s parents and the student if desired by the parents ... In its February 27, 2025 response, the Office stated, “[t]he Office of the Comptroller publishes payroll information on CTHRU for all Commonwealth employees except for those whose records are exempt under the public records law, M.G.L. c. 4, § 7(26)(a), in connection with either M.G.L. 66, § 10B or 20 U.S.C. § 1232g. Just as we are prohibited from disclosing this information on CTHRU, M.G.L. 66, § 10B and 20 U.S.C. § 1232g similarly bar us from producing these records in response to your request.” In its March 6, 2026 response, the Office asserted, ...the Office publishes payroll information for all Commonwealth employees on CTHRU, except for those that fall under two narrow statutory exemptions. The first statutory exemption, M.G.L. 66, § 10B, concerns Commonwealth employees who were victims of an adjudicated crime or domestic violence. The statutory language is clear: “The home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name, home address, telephone number, personal email address or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed.”

Darian Roberts, Esq. SPR25/0569 Page 5 March 27, 2025 In order to provide guidance to Commonwealth agencies on the implementation of this statute, the Office, in partnership with the Human Resources Division, published the Payroll Public Records Exemption Policy and Payroll Public Records Exemption Form. These documents provide guidance to agencies concerning the payroll public records exemption, procedures for how to apply it, and how to place an “exemption indicator” on an employee in the payroll system to ensure the employee’s information is not released in response to a public records request. The policy also provides information regarding “exemption review alerts,” which occur in the Commonwealth payroll system HR/CMS. Authorized users will receive an alert in the payroll system concerning an employee with an existing exemption if: 1. The employee transfers to a different agency within the state government; 2. The employee changes positions within their existing department; 3. The employee leaves state service; or 4. Five years have passed since the exemption was granted. When one of the first three events occur, the authorized user will review the policy and contact the employee to determine if the exemption should still apply. If the fourth event occurs, the authorized user will contact the employee to determine if the exemption should still apply five years after it was originally granted or if circumstances have changed. This alert creates an automatic review process to ensure that no Commonwealth employee’s information is exempt when it should be available for public view on CTHRU or through a public records request. While we believe this information has been properly withheld, in the interest of transparency, the Office can disclose that, in calendar year 2024, there were 557 total Commonwealth employees with an approved payroll public records exemption. The total payroll amount for these employees was $46,733,556.95. In its response, the Office recited a portion of 20 U.S.C. § 1232g, the Family Educational Rights and Privacy Act (FERPA) and further asserted, Again, while we believe this information has been properly withheld, in the interest of transparency we can disclose that, in calendar year 2024, this exemption applied to 3,062 employees, for a total payroll amount of $4,957,512.05. Note, however, that this does not mean that 3,062 employees were entirely exempt from CTHRU; only positions classified as “work study” were exempted from these individuals’ record, pursuant to FERPA. Of the 3,062 employees with the work study exemption, 3,058 employees had payroll records associated with non-work study positions that were available to view on CTHRU.

Darian Roberts, Esq. SPR25/0569 Page 6 March 27, 2025 The Office believes that it has fully complied with this request because we have provided sufficient details regarding the two statutory exemptions. Although the Office has met its burden to withhold certain information per G. L. c. 66, § 10B, it is uncertain from the Office’s response, how the statute permits it to withhold the workers’ titles, agency name, salaries, overtime, other cash compensation and total cash compensation from disclosure. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, based on the Office’s response, it is unclear how FERPA permits it to withhold the requested information regarding work-study employees from disclosure. Specifically, the Office must clarify how the requested records constitute education records under FERPA. Additionally, per Mr. Wallack’s appeal, where he appears to be interested in information regarding work-study employees earning more than $50,000 a year, it is unclear if the Office can provide this information. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Wallack 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: Todd Wallack