Todd Wallack v. Office of the Comptroller (SPR 20250886)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 15, 2025 SPR25/0886 Darian Roberts, Esq. Assistant General Counsel Records Access Officer Office of the Comptroller One Ashburton Place, Room 901 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 12, 2025, Mr. Wallack requested “a copy of the records of the following payouts, including the names of the recipient, listed in the Comptroller’s compilation of state settlements and judgments,” and provided a list sorted by dates and dollar amounts. I understand the Office assigned reference number 25-27 to this request. Previous Appeal This request was the subject of a previous appeal. See SPR25/0570 Determination of the Supervisor of Records (March 12, 2025). In my March 12th determination, I found that the Office did not meet its burden to redact records pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Subsequently, the Office responded on March 26, 2025. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office, and this appeal, SPR25/0886, 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). 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. SPR25/0886 Page 2 April 15, 2025 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 March 26th Response In its March 26, 2025 response, the Office cites numerous statutes, as they operate through Exemption (a) of the Public Records Law, for redacting “three potentially responsive claim forms.” See G. L. c. 4, § 7(26)(a). 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, 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.

Darian Roberts, Esq. SPR25/0886 Page 3 April 15, 2025 G. L. c. 66, § 10B and G. L. c. 265, § 24C In its March 26th response, the Office cites G. L. c. 66, § 10B, which provides in pertinent part as follows: 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. c. 66, § 10B. The Office also cites G. L. c. 265, § 24C, which provides in pertinent part as follows: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13B1/2, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. G. L. c. 265, § 24C. Under c. 66, § 10B and c. 265, § 24C, the Office argues the following: The Office, in partnership with the Human Resources Division, has provided guidance to Commonwealth agencies on the implementation of this statute through the Payroll Public Records Exemption Policy and Payroll Public Records Exemption Form (see attached documents). These documents provide background information to agencies about the payroll public records exemption, explain how employees may apply for the exemption, and describe how to place an “exemption indicator” on an employee record in the statewide payroll system, to ensure the employee’s information is not released in response to a public records request. The Commonwealth employee whose name was redacted on the Non-Tort Settlement/Judgment Payment Authorization Form related to the Plymouth County Sheriff’s Department has an active payroll public records exemption in

Darian Roberts, Esq. SPR25/0886 Page 4 April 15, 2025 the statewide payroll system, thus their information is exempt from disclosure under the Public Records Law. The Claimant name, payee name, case name, and case number were all redacted from the form because they either contained the name of or could be used to identify the exempt individual. ... The Office does not receive information about the reason for the exemption, as the Payroll Public Records Exemption Form is submitted to the employer department, and the employer makes the determination whether the employee is eligible and enters the flag in the statewide payroll system. Where a department has made such a determination, we believe we would be in violation of M.G.L. c. 66, § 10B, and could endanger the safety of the subject individual, were we to disclose this information. Accordingly, we believe it was appropriate and permissible for the Commonwealth to redact these fields pursuant to M.G.L. c. 4, § 7(26)(a). . . . None of the case names at issue in this request are currently public through the court system’s website. In this case, where the Office has explained how the redacted information described above, contained in the Authorization Form for the Plymouth County Sheriff’s Department, is the type of information contemplated under G. L. c. 66, § 10B, I find that the Office has met its burden to redact such information under G. L. c. 66, § 10B, as it operates through Exemption (a) of the Public Records Law. G. L. 119, § 51F, 42 U.S.C. c. 67, and G. L. c. 6, §§ 167, 172 In its response, the Office cites G. L. c. 119, § 51F, which provides in pertinent part as follows: The department [of children and families] shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order G. L. c. 119, § 51F. The Office also cites 42 U.S.C. Ch. 67 (governing federal Office of Child Abuse and Neglect, and establishing grants to prevent child abuse and neglect). Additionally, the Office cites the Criminal Offender Record Information (CORI) statute. The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an

Darian Roberts, Esq. SPR25/0886 Page 5 April 15, 2025 identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). Under the statutes cited above, the Office argues the following: The claimant’s name, payee name, case name, and case number were also redacted from the other two claim forms because these fields either contained the name of or could be used to identify an exempt individual. At the time these two claim forms were submitted to the Office for processing, the settling departments, the Department of Correction (DOC) and the Department of Children and Families (DCF), identified on the form that the claimant’s name was barred from disclosure and listed the supporting statute. The Office of the Comptroller receives the Non-Tort Settlement/Judgment Payment Authorization Form in its capacity as administrator of the Settlements

Darian Roberts, Esq. SPR25/0886 Page 6 April 15, 2025 and Judgments Reserve. Departments submit the Non-Tort Settlement/Judgment Payment Authorization Form to the Office, and these forms are reviewed to determine tax reporting and withholding requirements, as well as to determine payment instructions for departments. The Office’s oversight does not include a review of the substantive terms of the settlement, or an assessment of the validity of any public records exemptions asserted by the settling parties. The second section of the Non-Tort Settlement/Judgment Payment Authorization Form asks departments to determine whether or not a claimant’s name is barred from release by any state/federal law and, if so, to identify the applicable statute. It is the settling department, not the Office, that decides whether the claimant’s name is barred under a statutory exemption. This is appropriate because, due to the limited nature of its review of settlements and judgments, the Office receives limited documentation about the underlying matter. Departments are therefore best positioned to assess whether the facts support a claim of confidentiality. Here, counsel for DOC and DCF checked the box stating that the claimants’ names were barred from disclosure, and identified statutory exemptions that they believed supported this claim. Prior to responding to Mr. Wallack’s request, the Office confirmed with DOC and DCF that they both continue to believe that confidentiality is required in these instances. Due to the limited scope of our work, the Office does not have sufficient detail about the underlying matters to independently assess the validity of those claims. For further information about the basis for those claims, we recommend that Mr. Wallack contact the settling departments directly. Where the departments have determined that the redacted information is exempt pursuant to M.G.L. 119, § 51F, 42 U.S.C. c. 67, and M.G.L. c. 6, §§ 167, 172, we believe we would be in violation of those laws, and could endanger the privacy or safety of the subject individuals, were we to disclose the names of the individuals or the case names and numbers that can be used to identify them. Accordingly, we believe it was appropriate and permissible for the Commonwealth to redact these fields pursuant to M.G.L. c. 4, § 7(26)(a). Where the Office has explained that the redacted information contained in the Authorization Forms for the Department of Children and Families and for the Department of Correction is the type of information contemplated under G. L. c. 119, § 51F, I find that the Office has met its burden to redact such information under G. L. c. 119, § 51F, as it operates through Exemption (a) of the Public Records Law. Consequently, I find it unnecessary to address the Office’s claims for redacting the information under CORI. See G. L. c. 6, § 167. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Wallack is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Darian Roberts, Esq. SPR25/0886 Page 7 April 15, 2025 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack