Lucas-Yang, Kiana v. Human Resources Division (SPR 20260641)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 11, 2026 SPR26/0641 Michele M. Heffernan, Esq. General Counsel & Deputy Chief Human Resources Officer Human Resources Division 100 Cambridge Street, Suite 600 Boston, MA 02114 Dear Attorney Heffernan: I have received the petition of Kiana Lucas-Yang appealing the response of the Human Resources Division (Division/HRD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 2, 2026, Kiana Lucas-Yang requested the following: [A]ny and all records held by the Massachusetts Department of Transportation [sic] (including the Registry of Motor Vehicles and any MassDOT subdivisions, contractors, or agents) that relate to surveillance, investigation, monitoring, or observation of [an identified individual], whether conducted directly or through third parties. This request includes, but is not limited to: [1] Any surveillance video, photographs, audio recordings, or field notes [2] Any reports, logs, summaries, or memoranda referencing surveillance or investigative activity [3] Any contracts, invoices, purchase orders, or payment records involving workers’ compensation investigators, private investigators, surveillance vendors, or third-party contractors retained in connection with such activity [4] Any internal or external communications (including emails, text messages, or memoranda) referencing surveillance, observation, or investigation of me[.] For clarity, this request applies regardless of whether a workers’ compensation claim was filed, opened, or pending, and includes records generated in anticipation of, related to, or independent of any such claim. The Division responded on January 13, 2026. Unsatisfied with the Division’s response, Kiana Lucas-Yang petitioned this office, and this appeal, SPR26/0641, 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

Michele M. Heffernan, Esq. SPR26/0641 Page 2 March 11, 2026 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. Current Appeal In her appeal petition, Kiana Lucas-Yang argues the following: HRD denied the request by citing Exemptions (b), (c), and (f), asserting that the materials are not public records and are related to an ongoing investigation. However, no specific justification was provided as to how each record type falls under these exemptions. The agency also failed to conduct or describe any segregability review or confirm whether responsive records exist. Additionally, HRD has refused to confirm whether an investigation involving me exists, despite the fact that I have never been notified of one, nor provided any opportunity to respond. No such matter appears in my personnel file, and no employment action has been initiated. MassDOT HRD’s [sic] response does not meet the statutory requirement to disclose non-exempt portions of public records or provide sufficient explanation under the claimed exemptions. Many of the items requested such as vendor invoices, communications with contractors, and financial records are not exempt and should be disclosed. The Division’s January 13th Response In its January 13, 2026 response, the Division cites Exemptions (b), (c) and (f) of the Public Records Law for withholding responsive records. See G. L. c. 4, § 7(26)(b), (c), (f).

Michele M. Heffernan, Esq. SPR26/0641 Page 3 March 11, 2026 Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In its January 13th response, under Exemption (b), the Division argues that “HRD ... relies upon Exemption ‘B’ as the investigations and associated records are related to the internal personnel rules and practices of the Executive Department agencies.” In this case, the Division has not demonstrated that the records are solely related to internal personnel rules and practices of the government unit. Additionally, the Division has not explained whether such records are predominantly used internally, and it is unclear how such records would significantly risk circumvention of agency regulations and statutes. Consequently, it is unclear how the responsive records may be withheld in their entirety under Exemption (b). Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating

Michele M. Heffernan, Esq. SPR26/0641 Page 4 March 11, 2026 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. In its January 13th response, under Exemption (c), the Division argues the following: Materials related to an investigation are not public record. Under well-established law “personnel and medical files or information” are absolutely exempt from disclosure. Complaints that may result in adverse action fall squarely within personnel files or information requiring an absolute exemption. “[C]ore categories of personnel information that are ‘useful in making employment decisions’ regarding an employee” are not subject to disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). Personnel information is absolutely exempt from disclosure under the first clause of exemption (c). Wakefield, at 799-800. See generally Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et al., No. 1184CV01184A (Mass. Super. June 14, 2013). Based on the Division’s response, the Division has not met its burden to demonstrate how the withheld records constitute personnel information useful in making employment decisions regarding an employee. The Division is reminded that the term “personnel file or information” in

Michele M. Heffernan, Esq. SPR26/0641 Page 5 March 11, 2026 Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 5. Therefore, a custodian’s designation of materials as personnel information will not be dispositive to that point. Id. at 5-6. Accordingly, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. 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). 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three

Michele M. Heffernan, Esq. SPR26/0641 Page 6 March 11, 2026 categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its January 13th response, the Division argues that “HRD also relies on Exemption ‘F’ as the records are related to an ongoing investigation. HRD believes that maintaining the integrity of the investigation, the confidential nature of the outcome, the identity of participants, and protection of retaliation outweigh the public’s interest.” Based on the Division’s response, it is unclear how the responsive records constitute investigatory materials. Further, the Division states that the requested records are associated with an ongoing investigation, but it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Also, the Division did not demonstrate how disclosure of the withheld records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). It is also unclear from the Division’s response, which specific records the Division intends to withhold. The Division must identify the records, categories of records, or portions of records it intends to withhold under the Exemptions cited above. 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”). It is further uncertain why the records must be withheld in their entirety. The Division must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (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).

Michele M. Heffernan, Esq. SPR26/0641 Page 7 March 11, 2026 Conclusion Accordingly, the Division is ordered to provide Kiana Lucas-Yang with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Kiana Lucas-Yang may further appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kiana Lucas-Yang