Colman Herman v. Executive Office of Health & Human Services (SPR 20251738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 1, 2025 SPR25/1738 Hayley Carr, Esq. Assistant General Counsel Executive Office of Health and Human Services 1 Ashburton Place, 11th Floor Boston, MA 02108 Dear Attorney Carr: I have received the petition of Colman Herman appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 26, 2025, Mr. Herman requested, “copies of any and all assisted living complaints filed with the ombudsman and the dispositions of the cases for the period November 1, 2023 to October 31, 2024.” The Office responded on March 19, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/1738, 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 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

Hayley Carr, Esq. SPR25/1738 Page 2 July 1, 2025 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 his appeal petition, Mr. Herman states, “[t]his claim lacks the specificity required by the Massachusetts Public Records Law.” The Office’s March 19th Response In its March 19, 2025 response, the Office states: Complaints filed with the State Ombudsman are exempt from disclosure, pursuant to G.L. c. 4, §7(26)(a) (Exemption A), with reference to G.L. c. 6A, § 16CC(e), 101 CMR 30.15 (Ombudsman Program Information, Disclosure, and Confidentiality Requirements) and 45 CFR 1324.11(e)(3). These records are further protected from disclosure pursuant to G.L. c. 66A, the Massachusetts Fair Information Practices Act (‘FIPA’), and exempted from disclosure where the disclosure may constitute an unwarranted invasion of personal privacy. See G.L. c. 4, § 7(26)(c). 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

Hayley Carr, Esq. SPR25/1738 Page 3 July 1, 2025 access to the listed individuals or entities. G. L. c. 6A, § 16CC(e) provides in relevant part: The ombudsman shall establish procedures to protect the confidentiality of residents’ records and files. The procedures shall provide that: (i) information or records maintained by the statewide long term care ombudsman office shall not be disclosed unless the ombudsman or a designee authorizes the disclosure; and (ii) the ombudsman or designee shall not disclose the identity of any complainant or resident involved in any complaint unless the complainant or resident or a representative of the complainant or resident provides consent in writing or through the use of any necessary ancillary aids or services or communicates the consent orally or visually, the consent is documented to allow such disclosure and the consent specifies to whom the identity may be disclosed or a court orders such disclosure. G. L. c. 6A, § 16CC(e). 45 C.F.R. 1324.11(e)(3) provides in relevant part: Policies and procedures regarding disclosure of files, records, and other information maintained by the Ombudsman program must include, but not be limited to: (i) Provision that the files, records, and information maintained by the Ombudsman program may be disclosed only at the discretion of the Ombudsman or designee of the Ombudsman for such purpose and in accordance with the criteria developed by the Ombudsman, as required by § 1324.13(e); (ii) Prohibition of the disclosure of identifying information of any resident with respect to whom the Ombudsman program maintains files, records, or information, except as otherwise provided by § 1324.19(b)(5) … 45 C.F.R. 1324.11(e)(3). Based upon the Office’s response, it is unclear how the requested records fall within the type of records contemplated in G. L. c. 6A, § 16CC(e) and 45 C.F.R. 1324.11(e)(3). The Office merely cites the statutes without any further explanation as to their applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). Further, it is unclear why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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). The Office must clarify these matters.

Hayley Carr, Esq. SPR25/1738 Page 4 July 1, 2025 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. 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. The Office is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995); Reinstein, 378 Mass. at 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Office’s response, it is unclear how the withheld records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of

Hayley Carr, Esq. SPR25/1738 Page 5 July 1, 2025 privacy. As a result, I find that the Office did not meet its burden of specificity in withholding the records under Exemption (c) of the Public Records Law. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman