Requester Requester v. Massachusetts Commission Against Discrimination (SPR 20250938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2025 SPR25/0938 Ruthy Barros Records Access Officer Massachusetts Commission Against Discrimination One Ashburton Place, Suite 601 Boston, MA 02108 Dear Ms. Barros: I have received the petition of an anonymous requestor (requestor) appealing the response of the Commission Against Discrimination (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2025, the requestor sought “any and all public records made or received by MCAD and related to the complainant named [specified name].” The Commission responded on April 4, 2025, and assigned reference number 25-148 to this request. Unsatisfied with the Commission’s response, the requestor petitioned this office, and this appeal, SPR25/0938, was opened as a result. Subsequent to the opening of this appeal, the Commission provided a further response to the requestor and this office on April 11, 2025. Additionally, the requestor reiterated objections to the Commissions response in a letter to this office and the Commission on April 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. 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 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

Ruthy Barros SPR25/0938 Page 2 April 22, 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 the appeal petition, the requestor argues the following: MCAD’s refusal to release these records rests on an invocation of Exemption (f), yet this reliance is procedurally and substantively flawed. The agency provides no concrete, case-specific rationale—only vague references to confidentiality concerns. Such generalized assertions are legally insufficient to justify nondisclosure under Massachusetts law. In an April 12, 2025 letter to this office, the requestor argues, among other things, the following: MCAD’s reliance on its regulation and statutory exemptions fails to meet the high burden required by statute and judicial precedent. The regulatory language, by its very nature, is intended to protect investigative processes but does not justify the wholesale withholding of pertinent records when no specific, legitimate harm has been identified. The Commission’s April 4th and April 11th Responses In its April 4, 2025 response, the Commission provided copies “of the complaint and investigative disposition” in redacted form, and cites Exemptions (c) and (f) of the Public Records Law for withholding other records. See G. L. c. 4, § 7(26)(c), (f). The Commission also explains that “with the exception of the complaint and investigative disposition, the contents of MCAD investigative files are not available to the public, although parties are permitted greater access to their own investigative files.” In its April 11, 2025 response, the Commission further cites 804 C.M.R. 1.21(1)(b) as it operates through Exemption (a) of the Public Records Law, for withholding responsive records. 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

Ruthy Barros SPR25/0938 Page 3 April 22, 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 April 4th and April 11th responses, the Commission cites the following regulations: Case Information Available to the Public. The following requirements apply to a request for case information by the public, all subject to 804 CMR 1.21(3): . . . Post-determination. The investigative file in every charge after an investigative disposition issues shall be confidential and exempt from public disclosure except for the complaint and the investigative disposition. The administrative record, which begins at the issuance of a probable cause determination and does not include the investigative file except for the complaint, shall be available upon case dismissal or the issuance of a hearing decision, whichever is first. In the event of an appeal pursuant to 804 CMR 1.23, the record of the appeal shall be available upon case dismissal or the issuance of a final decision by the Full Commission, whichever is first. 804 C.M.R. 1.21(1)(b). Additional Case Information Available to the Parties. Upon request to the Records Access Officer post-determination, the parties to a complaint shall be allowed access to the investigative file, except that all records described in 804 CMR 1.21(3) shall be unavailable. 804 C.M.R. 1.21(2). Restrictions on Personal Data Identifiers in Filings. To protect personal privacy, parties and counsel shall refrain from including, or shall partially redact where

Ruthy Barros SPR25/0938 Page 4 April 22, 2025 inclusion is necessary, the following personal data identifiers from all filings and exhibits submitted to the Commission, whether filed electronically or in paper, unless otherwise ordered by the Commission: (a) Social Security, Taxpayer Identification, Driver’s License, State-issued Identification Card or Passport Numbers. If any such individual numbers shall be included in a filing, only the last four digits of that number should be used. (b) Names of Minor Children. If the involvement of a minor child shall be included in a filing, they shall be referred to only as “minor child,” although multiple minor children shall be distinguished from one another numerically, i.e., “minor child 2.” (c) Dates of Birth. If an individual’s date of birth shall be included in a filing, only the year should be used. (d) Financial Account, Credit or Debit Card Numbers. If any such financial account numbers shall be included in a filing, only the last four digits of these numbers should be used. (e) Medical Record Numbers. If any such medical record numbers shall be included in a filing, only the last four digits of these numbers should be used. (f) Mother’s Maiden Name. If a person’s mother’s maiden name is identified as such, only the first initial of the maiden name shall be used. 804 C.M.R. 1.21(4). In its April 11th response, under the regulations cited above, the Commission argues the following: Pursuant to G.L. c. 4, § 7(26)(a), records specifically or by necessary implication exempted from disclosure by statute are not public records. MCAD’s regulation, 804 CMR 1.21(1)(b) expressly states that at the close of an investigation, “[t]he investigative file in every charge after an investigative disposition issues shall be confidential and exempt from public disclosure except for the complaint and the investigative disposition.” Thus, the investigative file in any MCAD case is not public record. Once an investigative disposition has issued in a case, the investigative file is still not a public record, but the public is allowed access to the case’s complaint and investigative disposition per 804 CMR 1.21(1)(b). . . . [R]egulations adopted pursuant to statutory authority may serve as a basis for withholding records under Exemption (a). In this instance, MCAD relies on the express language of 804 CMR 1.21(1)(b) to withhold the investigative file from a non-party member of the public. Because the requestor is anonymous and not a party to the case, the investigative file is not subject to public disclosure. In its April 4th response, under the regulations cited above, the Commission argues the following for redacting the complaint and investigative disposition: Parties are also required to redact personal data identifiers from MCAD filings

Ruthy Barros SPR25/0938 Page 5 April 22, 2025 pursuant to 804 CMR 1.21(4) (2020). The Commission has redacted any information relating to home addresses, dates of birth, social security numbers, medical files or information as well as any other materials or data relating to a specifically named individual. This information has been redacted either pursuant to 804 CMR 1.21(4) (2020) or because its disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public’s interest in disclosure of the material pursuant to G.L. c. 4. § 7(26)(c). These redactions have been made to the records only where necessary and no whole pages have been withheld. Based on the information provided in the Commission’s April 4th and April 11th responses, where the Commission has indicated that it is withholding “the contents of MCAD investigative files,” I find that the Commission may properly withhold such records pursuant to 804 C.M.R. 1.21(1)(b), as it operates through Exemption (a) of the Public Records Law. Additionally, where the Commission has redacted information relating to the home address, date of birth, social security number, and medical file of a complainant from the complaint and investigative disposition, I find the Commission may properly redact such information pursuant to 804 C.M.R. 1.21(4) as it operates through Exemption (a) of the Public Records Law. 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). 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). 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.

Ruthy Barros SPR25/0938 Page 6 April 22, 2025 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 April 4th response, under Exemption (c), the Commission argues the following: [T]he Massachusetts Public Records Law authorizes withholding of “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.” G.L. c. 4, § 7(26)(c). . . . The Commission has redacted any information relating to home addresses, dates of birth, social security numbers, medical files or information as well as any other materials or data relating to a specifically named individual. This information has been redacted either pursuant to 804 CMR 1.21(4) (2020) or because its disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public’s interest in disclosure of the material pursuant to G.L. c. 4. § 7(26)(c). These redactions have been made to the records only where necessary and no whole pages have been withheld. Exemption (f) Exemption (f) permits the withholding of: 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

Ruthy Barros SPR25/0938 Page 7 April 22, 2025 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 April 4th response, under Exemption (f), the Commission states that “with the exception of the complaint and investigative disposition, the contents of MCAD investigative files are not available to the public, although parties are permitted greater access to their own investigative files. See G.L. c. 4, § 7(26)(f) and 804 CMR 1.21(2) (2020).” In its April 11th response, the Commission further states that “MCAD also asserts Exemption (f)—if the Supervisor requires an Exemption (f) analysis, the MCAD would be happy to provide one.” Where the Commission has met its burden to withhold and redact the records pursuant to the above cited regulations as they operate through Exemption (a), I find it unnecessary to address the Commission’s claims under Exemptions (c) and (f) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares 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: Anonymous Requestor