Keith M. Lee v. Office of the Attorney General (SPR 20251996)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2025 SPR25/1996 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Keith M. Lee, Esq., of Hogan Lovells US LLP, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 28, 2025, Attorney Lee requested the following records: On behalf of Symplr Software, LLC, in connection with the lawsuit captioned “[Named Individual] v. Symplr Software, LLC” originally filed in the Commonwealth of Massachusetts Superior Court - Middlesex (Civ. Action No. 24CV274) and now pending in arbitration, I hereby respectfully request any documents submitted to or received from the Attorney General’s office from January 1, 2022, to the present day (May 28, 2025) regarding [Named Individual]’s allegations that Symplr Software, LLC, violated the Mass. Wage Act (M.G.L. c. 149, s 148 et seq.). The AGO provided Attorney Lee with a response on June 2, 2025. Unsatisfied with the response, Attorney Lee petitioned this office and this appeal, SPR25/1996, 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

Hanne Rush, Esq. SPR25/1996 Page 2 July 24, 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. Attorney 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 July 9, 2025 appeal, Attorney Lee stated, “[t]he exemptions cited by the AGO in its June 2, 2025, denial (G.L. c. 4, § 7, cl. 26(c) and 26(f)) are not applicable to Respondent’s request and do not exempt disclosure of any responsive documents. The records sought are documents constituting or relating to Claimant’s complaint to the Attorney General regarding a Wage Act violation...” The AGO’s June 2nd response In its June 2, 2025 response, the AGO cited Exemptions (c) and (f) of the Public Records Law to withhold the records in their entirety. 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 the second clause of 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 clause 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

Hanne Rush, Esq. SPR25/1996 Page 3 July 24, 2025 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). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires 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. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983).

Hanne Rush, Esq. SPR25/1996 Page 4 July 24, 2025 The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its response, the AGO asserts, In this instance, please be advised that records that may be responsive to your request are exempt from disclosure in their entirety under G.L. c. 4, § 7, cl. 26(c), as they contain information relating to a specifically named individual, i.e., the identifying/contact information of the complainant, the disclosure of which may constitute an unwarranted invasion of personal privacy. In addition, G.L. c. 4, § 7, cl. 26(f) applies to withhold the names and identifying information of such complainants, as disclosure would cause a “chilling effect” on complainants to speak candidly with law enforcement without fear of intimidation, retaliation, or invasion of privacy. Where you have asked for the complaint of a particular complainant, i.e., [Named Individual], this information cannot be appropriately redacted to sufficiently avoid the above-referenced invasion of privacy or “chilling effect,” and therefore withholding of the records in their entirety is warranted. Further, your request is subject to the Massachusetts Fair Information Practices Act (FIPA), G.L. c. 66A, and associated AGO regulations, 940 CMR 11.00 et seq., as it concerns information related to [Named Individual] (“personal data”) that is not a public record. Under FIPA, the AGO may not disseminate personal data to persons other than [Named Individual] (the “data subject”) without their written authorization or unless another exception applies. Exemption (f) permits the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Where it appears Attorney Lee knows the identity of the complainant, I find the AGO may permissibly withhold the responsive complaint from disclosure under Exemption (f), as any redactions to preserve the complainant’s identity may be futile in this instance. The inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his/her career, such as people in the workforce community. See Globe Newspaper Co., 388 Mass. at 438; see also Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses).

Hanne Rush, Esq. SPR25/1996 Page 5 July 24, 2025 Conclusion Accordingly, where I find the AGO may permissibly withhold the responsive record from disclosure under Exemption (f), I decline to opine on the AGO’s Exemption (c) claim supporting non-disclosure of the withheld document. I will now consider this administrative appeal closed. Please be advised that this office shares jurisdiction with the Superior Court. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Keith M. Lee, Esq.