Todd Wallack v. Office of the Comptroller (SPR 20251963)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2025 SPR25/1963 Darian Roberts, Esq. Assistant General Counsel/Records Access Officer Office of the Comptroller One Ashburton Place Boston, MA 02108 Dear Attorney Roberts: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Office of the Comptroller (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 18, 2025, Mr. Wallack requested, “[r]ecords of state employee names, titles, agency, salaries, overtime, other cash compensation and total cash compensation that are missing from the public online CTHRU database but whose payroll information is in the possession of the state comptroller’s office for calendar years 2023 and 2024.” Prior Appeal, Reconsideration and In Camera review This request was the subject of a prior appeal, a subsequent reconsideration and an in camera review. See SPR25/0569 Determinations of the Supervisor of Records (March 27, 2025, May 19, 2025, and June 23, 2025). In my June 23rd determination, I found that although portions of the records may fall under Exemption (a), the Office did not meet its burden to show that the entirety of the withheld records are exempt under Exemption (a) of the Public Records Law. On July 8, 2025, the Office provided a response. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office and this appeal, SPR25/1963, 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 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

Darian Roberts, Esq. SPR25/1963 Page 2 July 22, 2025 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. Current appeal In his appeal, Mr. Wallack asserts, The agency contends it must redact all information on employees who have been victims of adjudicated crimes or domestic violence under G.L.C. 66, §10B, including their name, title, agency, salaries, overtime, other cash compensation and total compensation and the year of pay. But the statute the agency cited, G. L. c. 66, §10B, only permits agencies to redact certain information from records of victims adjudicated crimes and domestic violence: “The home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence.” The agency went well beyond that and redacted ALL information about those employees, including their names, job titles, precise salaries, overtime, cash compensation and agency name. The Office’s July 8th Response In its July 8, 2025 response, the Office cites Exemption (a) of the Public Records Law and specifically, G. L. c. 66, § 10B and G. L. c. 265 § 24C, to withhold the requested records in their entirety. 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).

Darian Roberts, Esq. SPR25/1963 Page 3 July 22, 2025 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. The Office cites G. L. c. 66, § 10B, which provides in pertinent part, The home address, telephone number, personal email address or place of employment or education of victims of adjudicated crimes, of victims of domestic violence and of persons providing or training in family planning services and the name, home address, telephone number, personal email address or place of employment or education of a family member of any of the foregoing shall not be public records in the custody of a government agency which maintains records identifying such persons as falling within such categories and shall not be disclosed. The home address, personal email address, home telephone number or mobile telephone number of an employee of an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof, or of an authority established by the general court to serve a public purpose, in the custody of the governmental entity that maintains records identifying persons as falling within those categories shall not be public records; provided, however, that the information may be disclosed only to an employee organization whose written aims and objectives on file with the department of labor relations are to represent public employees in collective bargaining under chapter 150E or under chapter 150A for employees of a public authority subject to said chapter 150A by chapter 760 of the acts of 1962, a nonprofit organization for retired public employees under chapter 180, a criminal justice agency as defined in section 167 of chapter 6 or as otherwise required by law. The home address, personal email address, home telephone number or mobile telephone number of a family member of an employee that is contained in a

Darian Roberts, Esq. SPR25/1963 Page 4 July 22, 2025 record in the custody of a government agency that maintains records identifying employees of an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof, or of an authority established by the general court to serve a public purpose shall not be a public record. G. L. c. 66, § 10B. The Office also cites G. L. c. 265 § 24C, which states in pertinent part, That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13B1/2, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be deemed to be a public record under the provisions of section seven of chapter four. Except as otherwise provided in this section, it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim of any of the offenses described in the first paragraph. A violation of this section shall be punishable by a fine of not less than two thousand five hundred dollars nor more than ten thousand dollars. G. L. c. 265 § 24C. In its July 8th response, the Office states: Although we do not believe we are permitted to release individualized information for exempt employees, we have determined that we can provide additional aggregate data of this nature without risking the identification of exempt individuals. Therefore, in the interest of transparency and consistent with your determination, we can disclose the following aggregate information about the 557 exempt employees for calendar year 2024 . . . The Office would like to reiterate that the names Mr. Wallack would like publicly released are those of crime victims and/or victims of domestic violence, sexual assault, and/or rape, who wish to protect their identity so as to minimize the risk

Darian Roberts, Esq. SPR25/1963 Page 5 July 22, 2025 of future harm, as anticipated by G.L. c. 265, § 24C. The Office believes that it has a legal duty to withhold these names from the public payroll database, and that it may not provide them in response to record requests like the one at issue. The Office also reiterates its position that the requested records related to the names and other identifiable information of these Commonwealth employees who are crime victims and/or victims of domestic violence, sexual assault, and/or rape, are exempt under the statutory exemption of the public records law, M.G.L. c. 4, § 7(26)(a), specifically in connection with M.G.L. c. 66, § 10B. The Office is merely the payroll administrator, and not the employer, for almost all the individuals whose information was requested by Mr. Wallack. We do not receive or review the materials supporting payroll public records exemption requests, and thus we are not in the position to make case-by-case determinations about the safety risk of disclosing any individual’s information. Accordingly, these safety concerns necessitate that we do not provide any individualized data that can be used to identify these individuals. We have made every effort to provide all information that we can without violating the law. For the above stated reasons, we believe that we have fully complied with the Public Records Law in responding to this request. Upon review, I find that although portions of the records may fall under Exemption (a) and specifically, G. L. c. 66, § 10B, the Office has not met its burden to show that the entirety of the withheld records are exempt under Exemption (a) of the Public Records Law. 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). Further, I find that where the requested records are not “. . . records of a court or any police department . . .[,]” the Office has not met its burden to demonstrate that G. L. c. 265 § 24C, permits it to withhold the records in their entirety. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack 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. Wallack may appeal the substantive nature of the Office’s response within 90 days. See 950 C.M.R. 32.08(1).

Darian Roberts, Esq. SPR25/1963 Page 6 July 22, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack