Colman Herman v. Commonwealth Corporation (SPR 20251237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2025 SPR25/1237 Matthew Kitsos Deputy Chief of Staff/Director of Communications Commonwealth Corporation 2 Oliver Street Boston, MA 02109 Dear Mr. Kitsos: I have received the petition of Colman Herman appealing the response of the Commonwealth Corporation (Corporation) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 9, 2025, Mr. Herman requested, “...the latest diversity data for the Commonwealth Corporation. Ideally the data would be organized by job categories. An example would be officials and administrators, professionals, service workers, office workers, clerical workers, etc.” On April 1, 2025 Mr. Herman modified his request and stated, “[c]ould you please state the number in each job category?” Prior Appeal This request was the subject of a prior appeal. See SPR25/1125 Determination of the Supervisor of Records (May 2, 2025). In my May 2nd determination, I learned that the Corporation provided Mr. Herman with a supplemental response dated April 23, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/1237, 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

Matthew Kitsos SPR25/1237 Page 2 May 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. 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 Corporation’s April 23rd Response In its April 23, 2025 response, the Corporation cited Exemption (c) of the Public Records Law to withhold the requested documents. Current appeal In his appeal, Mr. Herman states, “[the Corporation’s claim of exemption (c) clearly lacks the specificity required by the Massachusetts public records law. It is completely unclear how anyone’s privacy would be invaded. Since the Commonwealth Corporation has access to the responsive data, there is no legal reason why I too cannot have access to the data.” 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). 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. 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).

Matthew Kitsos SPR25/1237 Page 3 May 15, 2025 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 response, the Corporation asserts, On April 1, you followed up by asking for this data broken down by employee number. The so-called privacy clause contained in Exemption (c) of Chapter 4 of Section 7 of the General Laws permits the withholding of: personnel and medical files or information ... The specific data you are requesting is exempted from disclosure as it relates to a specifically named individual and its disclosure may constitute an unwarranted invasion of personal privacy. Although the Corporation indicates that the records constitute private information, it is unclear how the records, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Corporation did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Additionally, the Corporation must clarify whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Corporation 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 (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. Mr. Herman may appeal the substantive nature of the Corporation’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman