Colman Herman v. Executive Office of Aging & Independence (SPR 20250943)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 17, 2025 SPR25/0943 Lesley Moreau Records Access Officer Executive Office of Aging and Independence One Ashburton Place Boston, MA 02108 Dear Ms. Moreau: I have received the petition of Colman Herman appealing the response of the Executive Office of Aging and Independence (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 26, 2024, Mr. Herman requested copies of assisted living complaints for the period November 1, 2023 to October 31, 2024. The Office provided responses on December 18, 2024 and February 4, 2025. Unsatisfied with the responses, Mr. Herman petitioned this office and this appeal, SPR25/0943, 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 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. 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

Lesley Moreau SPR25/0943 Page 2 April 17, 2025 The Office’s December 18th and February 4th Responses In its December 18, 2024 response, the Office provided seven responsive records, redacted pursuant to Exemptions (a) and (c) of the Public Records Law. In its February 4, 2025 response, the Office provided six additional responsive records, redacted pursuant to Exemptions (a) and (c) of the Public Records Law. Current Appeal In his April 7, 2025 petition to this office, Mr. Herman contended that the Office’s claims under Exemptions (a) and (c) “… lack the specificity required by the public records law.” 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 December 18th and February 4th responses, the Office stated: Further, certain of this information constitutes personal data which [the Office] is prohibited from disclosing pursuant to G.L. 66A, the Massachusetts Fair Information and Practices Act (“FIPA”). If [the Office] disclosed such information, [the Office] may be liable to damages under G.L. c. 214 § 3B. See

Lesley Moreau SPR25/0943 Page 3 April 17, 2025 also 801 CMR 3.00 (regulating dissemination of personal data under FIPA). Accordingly, this information is also exempted pursuant to G.L. c. 4, §7(26)(a) as outlined above. Fair Information Practices Act (FIPA) The Office 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 Office’s response, it is unclear how the cited statute specifically or by necessary implication permits the Office to redact 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 Office 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). 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

Lesley Moreau SPR25/0943 Page 4 April 17, 2025 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. In its December 18th and February 4th responses, the Office stated: [The Office] has redacted individually identifiable information and medical information pursuant to G.L. c. 4, §7(26)(c) (“Exemption c”). Medical information is categorically exempt from disclosure pursuant to exemption (c). See Globe Newspaper Co. v. Bos. Ret., Bd. 388 Mass. 437, 442 (1983). Additionally, [the Office] redacts these records under Exemption (c)’s general protections, as release of such information would constitute an unwarranted invasion of the subject individual’s privacy interest, this is not outweighed by the public interest in disclosure. To the extent the responsive records contain the medical information of a specifically identified individual, such portions may be redacted under Exemption (c) of the Public Records Law. However, I find that the Office has not met its burden to justify all of its redactions under Exemption (c). Specifically, the Office has not demonstrated that the records contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the redacted information is available from other sources. PETA, 477 Mass. at 292. The Office also has not met its burden to prove that the public interest in obtaining the requested information is substantially outweighed by the seriousness of any invasion of privacy. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Herman 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. Herman may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Lesley Moreau SPR25/0943 Page 5 April 17, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman