Peter J. Chongarlides v. Department of Correction (SPR 20250948)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2025 SPR25/0948 Kate Silvia Director of Communication Department of Correction 50 Maple Street Milford, MA 01757 Dear Director Silvia: I have received the petition of Peter J. Chongarlides appealing the response of the Department of Correction (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 8, 2024, Mr. Chongarlides requested “… copies of [an identified individual’s] Law Librarian’s certification, as a Professional Librarian, Master’s Degree in Library Science and/or any other certification[.]” Prior Appeal This request was the subject of a prior appeal. See SPR25/0103 Determination of the Supervisor of Records (January 21, 2025). In my January 21st determination, I found that the Department had not met its burden to withhold responsive records under Exemption (c) of the Public Records Law, and ordered the Department to identify the responsive records in its possession and clarify whether it was possible to produce segregable portions. The Department provided a response on March 20, 2025. Unsatisfied with the response, Mr. Chongarlides petitioned this office and this appeal, SPR25/0948, 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

Kate Silvia SPR25/0948 Page 2 April 22, 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. 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. The Department’s March 20th Response In its March 20, 2025 response, the Department informed Mr. Chongarlides that it was withholding the responsive records pursuant to Exemption (c) of the Public Records Law and G. L. c. 66, § 10B, as it operates through Exemption (a). Current Appeal In his March 29, 2025 petition to this office, Mr. Chongarlides objected to the withholding of responsive records. 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

Kate Silvia SPR25/0948 Page 3 April 22, 2025 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 March 20th response, the Department stated: By identifying a Department employee’s employment qualifications, which would presumably identify the name of the school(s) she attended and her work experience, a requestor could use that information to obtain further identifying [information] about this individual, which is intended to be protected by the public records law. G. L. c. 66, § 10B states in relevant part: The home address, personal email address and home telephone number of law enforcement, judicial, prosecutorial, department of youth services, department of children and families, department of correction and any other public safety and criminal justice system personnel, and of unelected general court personnel, shall not be public records in the custody of the employers of such personnel or the public employee retirement administration commission or any retirement board established under chapter 32 and shall not be disclosed, but such information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180 or to criminal justice agencies as defined in said section 167 of said chapter 6. G. L. c. 66, § 10B. Where the Department, for the below reasons, has met its burden to withhold the responsive records pursuant to Exemption (c), I decline to opine on the applicability of G. L. c. 66, § 10B to the responsive records. 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from 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,

Kate Silvia SPR25/0948 Page 4 April 22, 2025 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. In its March 20th response, the Department stated: [I]nformation about an employee’s education and qualifications for employment qualify as personnel information. See Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 606 [sic] (listing personnel information and including education and qualification for employment within the definition of personnel information); See Wakefield Teachers Ass’n., 431 Mass at 798 citing Oregonian Publ. Co. v. Portland Sch. Dist. No. 1J, 987 P.2d 480, 484 (stating that personnel information “would usually include information about a teacher’s education and qualifications for employment, job performance, evaluations, disciplinary matters or other information useful in making employment decisions regarding an employee.”). The records that you are seeking relate to [an identified employee’s] education and overall qualifications for employment and would contain information that an employer would rely upon to make employment decisions about [an identified employee]. Based on the Department’s response, and where the responsive records constitute one of the core categories of personnel information that are useful in making employment decisions regarding an employee, I find that the Department has met its burden to withhold the responsive records under Exemption (c).

Kate Silvia SPR25/0948 Page 5 April 22, 2025 Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Chongarlides 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Peter J. Chongarlides