Renee Mahler v. Executive Office of Health & Human Services (SPR 20250732)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2025 SPR25/0732 Berlinda Bernard Records Access Officer Executive Office of Health and Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Ms. Bernard: I have received the petition of Renee Mahler 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 November 19, 2024, Ms. Mahler requested the following: [A] list/spreadsheet of the rehabilitation and occupational therapy employees at WRCH who had changes to their pay from January 1, 2022 to the present that includes: their position, old salary, new salary, [percent] change, dates of increases [or] decreases, grade/step levels changes, the specific reason for the change in pay (e.g., promotion, demotion, CBA increase) and all communications/documents that reflect the reason(s) for the changes(s) in pay and/or grade/step levels[.] In a telephone conversation with the Office on December 2, 2024, Ms. Mahler narrowed her request to email communications specifically related to herself and EOHHS, communications about herself, and where she was the subject of the email communications. The Office responded on January 16, 2025. Unsatisfied with the Office’s response, Ms. Mahler petitioned this office, and this appeal, SPR25/0732, was opened as a result. Status of Requestor In her appeal petition, Ms. Mahler states that “[t]hese documents pertain to me personally … and I have the right to access records about myself.” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access 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

Berlinda Bernard SPR25/0732 Page 2 March 28, 2025 to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Mahler’s status will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. 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 January 16th Response In its January 16, 2025 response, the Office identified 64 records responsive to Ms. Mahler’s request and provided 3 records unredacted while withholding the remaining 61 responsive records under Exemptions (b) and (c) of the Public Records Law. See G. L. c. 4 § 7(26)(b), (c). 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 governmental functions requires such withholding G. L. c. 4, § 7(26)(b).

Berlinda Bernard SPR25/0732 Page 3 March 28, 2025 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). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its January 16th response, the Office states, “[e]xemption B exempts from public disclosure records ‘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 governmental functions requires such withholding.’ Specifically, the requested documentation relates solely to personnel rules and practices for decision-making about internal demotions. The documentation is internal and has not been otherwise released.” In this case, the Office has not demonstrated that the requested records are solely related to internal personnel rules and practices. Additionally, the Office has not shown how release of the records would significantly risk circumvention of department regulations and statutes. Accordingly, the Office has not met its burden to withhold the responsive records under Exemption (b). Exemption (c) Exemption (c) applies to: 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from

Berlinda Bernard SPR25/0732 Page 4 March 28, 2025 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). 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. 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. Under Exemption (c), the Town stated: Please note, some of the records being requested may be personnel records. EOHHS withholds the requested records as your PRR seeks an individual’s personnel information.… Personnel information is categorically exempt from disclosure pursuant to G.L. c. 4, §7(26)(c) (‘Exemption (c)’). Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 799-800 (2000). Even if this information were not categorically exempt, EOHHS withholds these records under Exemption (c)’s general privacy protections, as the information is of a highly personal nature, containing specific details concerning an individual, and release of such information as public information would constitute an unwarranted invasion of the individual’s privacy interests. The Office is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co., 419 Mass. 852, 857 (1995); Flatley, 419

Berlinda Bernard SPR25/0732 Page 5 March 28, 2025 Mass. at 511. The Office’s response did not contain the specificity required in a denial of access to public records. Based on the Office’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. Additionally, it is unclear how the withheld records contain 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 any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Office 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. As a result, I find that the Office did not meet its burden of specificity in withholding the records under Exemption (c) of the Public Records Law. Further, it is unclear why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Ms. Mahler 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. Sincerely, Manza Arthur Supervisor of Records cc: Renee Mahler