Thomas Rooke v. Executive Office of Health & Human Services (SPR 20253123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2025 SPR25/3123 Patricia M. Smith, Esq. Assistant General Counsel Executive Office of Health and Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Attorney 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/2831 Determination of the Supervisor of Records (October 8, 2025). In my October 8th determination, I ordered the Office to clarify its claims under the Americans with Disabilities Act (ADA), operating through Exemption (a) of the Public Records Law, to withhold records responsive to Item 3 of the request in their entirety. Additionally, I found that while portions of the records responsive to Item 3 may be withheld under Exemption (c) as they contain the medical information of a specifically identified individual, it was unclear how all the records may be withheld pursuant to Exemption (c). Subsequently, the Office responded on October 23, 2025. Unsatisfied with the Office’s response, Mr. Rooke petitioned this office, and this appeal, SPR25/3123, was opened as a result. 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, Esq. SPR25/3123 Page 2 November 6, 2025 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. 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 October 23rd Response In its previous response to Item 3 of the request, the Office indicated that it withheld in their entirety 52 responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. In its October 23, 2025 response, regarding Item 3 of the request, the Office provided additional information to support its claims for withholding the responsive records. Specifically, the Office provided additional information regarding its claims under the ADA and the Family and Medical Leave Act (FMLA), operating under Exemption (a), as well as Exemption (c).

Patricia M. Smith, Esq. SPR25/3123 Page 3 November 6, 2025 Current Appeal In his October 24, 2025 appeal petition, Mr. Rooke again objects to the Office’s withholding of records responsive to Item 3 of the request. He states, “instead of producing the documents . . . EOHHS sent me a letter objecting to their production, again.” In a subsequent email to this office on October 31, 2025, Mr. Rooke provides further information regarding his objections to the Office’s withholding of records responsive to Item 3. 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 access to the listed individuals or entities. Americans with Disabilities Act In its previous response to Item 3 of the request, the Office advised that the 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.” In its October 23, 2025 response to Item 3, the Office cites 42 U.S.C. § 12112(d)(3)(B), which provides in pertinent part: (B) information obtained regarding the medical condition or history of the

Patricia M. Smith, Esq. SPR25/3123 Page 4 November 6, 2025 applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that-- (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information on request. 42 U.S.C. § 12112(d)(3)(B). Under Exemption (a) and 42 U.S.C. § 12112(d)(3)(B), the Office indicates in its response that the 52 responsive records responsive to Item 3 comprise, among other things, “a specific individual’s accommodation request under the Americans with Disabilities Act (ADA).” The Office additionally provides the following: The withheld records are communications discussing the specific individual’s “medical condition or history” in regard to the accommodation request. Although the statute does not address email communications specifically, it must be necessarily implied that such records are protected from disclosure. The intent of the statute is not to protect the individual’s medical information only in certain formats. Here, where the records contain similar information to that required to be “maintained on separate forms and in separate medical files and is treated as a confidential medical record,” it necessarily follows that the information should not be disclosed if contained in communications related to the ADA accommodation request. Family and Medical Leave Act In its response, the Office additionally cited 29 C.F.R. § 825.500(g) of the FMLA and stated, “the statute necessarily implies the information is protected from disclosure whether contained in official FMLA paperwork or in email communications.” The regulation provides in pertinent part: Records and documents relating to certifications, recertifications or medical histories of employees or employees’ family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files. 29 C.F.R. § 825.500(g).

Patricia M. Smith, Esq. SPR25/3123 Page 5 November 6, 2025 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). First Clause – Personnel While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798. 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

Patricia M. Smith, Esq. SPR25/3123 Page 6 November 6, 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. In its previous response, under Exemption (c), the Office stated that the records contained “an individual’s medical information[.]” Further, the Office contended that “[e]ven if this information was not categorically exempt, EOHHS [withholds] 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 interests.” In its October 23, 2025 response, the Office provided the following additional claims under Exemption (c) regarding its withholding of records responsive to Item 3 : Here, where the records relate to an individual’s request for an accommodation under the ADA, an individual’s request for leave under the FMLA, and/or core categories of personnel information including discipline and work performance, EOHHS reasonably believes the risk for personal embarrassment is high. The records contain intimate details of a highly personal nature including references to an individual’s medical diagnosis. To EOHHS’ knowledge, the information is not available from other public sources. The public interest in disclosure of the withheld records is low, if any, as the records concern a specific individual’s personal requests for an ADA accommodation and medical leave. The public may have a legitimate interest in aggregate information relating to ADA accommodations and FMLA leaves, but EOHHS does not believe the public interest extends to individual-specific records on these matters. Accordingly, EOHHS maintains the public interest in obtaining the requested information does not outweigh the seriousness of the invasion of privacy.

Patricia M. Smith, Esq. SPR25/3123 Page 7 November 6, 2025 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (c) claims made by the Office to withhold records responsive to Item 3 of the request, the Office must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with un-redacted copies of the records responsive to Item 3 of the request for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Thomas Rooke