Thomas Rooke v. Executive Office of Health & Human Services (SPR 20252831)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 8, 2025 SPR25/2831 Patricia M. Smith Records Access Officer Executive Office of Health and Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Ms. Smith: I have received the petition of Thomas Rooke 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 August 20, 2025, Mr. Rooke requested: 1. All badge access reports of [three identified individuals] from 9/1/2023 to 5/30/2024. 2. All state email and Teams communications from [four identified individuals] from 02/01/2024 to 5/30/2024 regarding [an identified individual]. 3. All communications between [two identified individuals], and the ADA Department and its employees from 4/1/2024 to 5/30/2024 in relation to [an identified individual]. 4. All Teams App communications between [two identified individuals] from April 2, 2024 - May 8, 2024. The Office responded on September 11, 2025. Unsatisfied with the response, Mr. Rooke petitioned this office and this appeal, SPR25/2831, 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. 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

Patricia M. Smith SPR25/2831 Page 2 October 8, 2025 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Rooke’s status will play no role in a determination as to whether the records should be disclosed or withheld under the Public Records Law. The Office’s September 11th Response In its September 11, 2025 response, the Office produced records responsive to Item 1, and stated that it would produce records responsive to Item 2 on or before September 19, 2025. The Office further produced a record responsive to Item 4, redacted pursuant to Exemptions (c) and (n) of the Public Records Law. The Office withheld in their entirety 52 records responsive to Item 3, pursuant to Exemptions (a) and (c) of the Public Records Law. Current Appeal In his September 25, 2025 petition to this office, Mr. Rooke objected to the withholding of records responsive to Item 3 of the request and contended that he had a special right of access to the 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).

Patricia M. Smith SPR25/2831 Page 3 October 8, 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, 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 access to the listed individuals or entities. In its September 11th response, the Office stated: [T]he records relate to an accommodation request under the Americans with Disabilities Act (ADA) pertaining to a specifically named individual. ADA accommodation requests must be kept confidential pursuant to 42 U.S.C. § 12101 et seq. Based on the Office’s response, it is unclear how the cited statute expressly or by necessary implication permits the Office to withhold the responsive records from disclosure. Consequently, I find that the Office has not met its burden to withhold the responsive records under Exemption (a) of the Pubic 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). 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).

Patricia M. Smith SPR25/2831 Page 4 October 8, 2025 First Clause – Medical Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Second Clause - Privacy 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 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. In its September 11th response, the Office stated: [A]n individual’s medical information is categorically exempt from disclosure pursuant to G.L. c. 4, §§ 7(26)(c) (“Exemption (c)”). See Globe Newspaper Co. v. Bos. Ret. Bd., 388 Mass. 427, 442 (1983). Even if this information was not categorically exempt, EOHHS redacts these records under Exemption (c)’s general privacy protections, as the information is of a highly personal nature, containing specific details which may identify individuals, and release of such information would constitute an unwarranted invasion of an individual’s privacy

Patricia M. Smith SPR25/2831 Page 5 October 8, 2025 interests. The individuals’ privacy interests outweigh the public’s interest in disclosure. Please note the records cannot be deidentified through redactions. Where, to be responsive, the records must concern the individual named in the request and must be communications with the “ADA Department and its employees,” EOHHS is unable to protect the individual’s identity or remove the subject matter, namely an ADA accommodation request. To the extent the responsive records contain the medical information of a specifically identified individual, such portions may be withheld under Exemption (c) of the Public Records Law. However, the Office has not met its burden to demonstrate that the responsive records, in their entirety, constitute personal medical information. Further, the Office has not met its burden to demonstrate that the responsive records, in their entirety, constitute intimate details of a highly personal nature, nor that disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. Further, the Office did not provide sufficient information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Rooke 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. Rooke may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Thomas Rooke