Driscoll, Sean v. Barnstable, Town of - Office of Town Clerk (SPR 20150399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 7, 2015 SPRlS/399 Ms. Ann M. Quirk Town Clerk Town of Barnstable 367 Main Street Hyannis, MA 02601 Dear Ms. Quirk: I have received the petition of Sean F. Driscoll of the Cape Cod Times appealing the response of the Town of Barnstable (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Driscoll requested "[a] copy ofthe current dog registration or dog license database, including all information collected by the town from applicants." Mr. Driscoll also requested a waiver of fees. The Town provided responsive records; however, it redacted "cell phone numbers, unlisted phone numbers and email addresses," citing Exemptions (b) and (c) of the Public Records Law. G. L. c. 4, § 7 (26) (b), (c). In its response the Town explained that it guarantees the dog owners that the telephone numbers will be used on in emergency situations. Please be advised that no government agency may make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Health and Human Services, 690 F.2d 252,263 (D.C. Cir. 1982); see also Galvin v. Mass. Mut. Life Ins. Co., 20 Mass. L. Rep. 533, 28 (2006) (a public employee has no authority to override, by means of a promise of confidentiality, the General Court's determination that any document "made or received" by a public employee shall be available to the public unless one of the legislatively enacted exemptions applies). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom of Information Act with a private agreement). Therefore, a guarantee to keep records private cannot be used to circumvent the mandatory disclosure provision of the Public Records Law. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Town did not contain the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Ann M. Quirk SPR15/399 Page Two July 7, 2015 specificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. The Town failed to inform Mr. Driscoll ofhis administrative remedies under the Public Records Law. The Public Records Access Regulations state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1). The Town failed to inform Mr. Driscoll of this right. Exemption (b) The Town cited Exemption (b) to justify withholding portions of the responsive records. 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) For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. In this instance the Town has not demonstrated also that proper performance of necessary Town functions will be inhibited by disclosure of email addresses or telephone numbers of dog owners. Accordingly, I find the Town has failed to meet its burden with respect to the applicability of Exemption (b) to the withhold portions of the responsive records. Exemption (c) The Town indicated its intent to withhold the records pursuant to the second clause of Exemption (c) of the Public Records Law. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)

Ms. Ann M. Quirk SPR15/399 Page Three July 7, 2015 .Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 3 80 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions ofrecords containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 154 (1979). The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. Disclosure of an unpublished telephone number may result in an unwarranted invasion of privacy. Specifically, an individual whose telephone number is unpublished may have a reasonable expectation of privacy in the number if it was provided in a manner intended to secure its private nature. See Attorney General v. Assistant Commissioner of the Real Property Department of Boston, 380 Mass. 623, 627 (1980) (inquiry into privacy interests at stake in disclosure of numbers called on municipal telephone lines). If any of these persons do have unpublished telephone numbers, the extent of the privacy interest affected turns on whether the individuals whose unpublished numbers appear in the records took measures to ensure that their telephone numbers were not further publicized. The public interest in disclosure of such telephone numbers may be outweighed by an individual's demonstrated interest in protecting the confidentiality of an unpublished number. Accordingly, the status of unpublished telephone numbers appearing in the requested records can only be made on a case-by-case basis. In order to withhold such numbers, the Town must show that individuals have taken the requisite steps to prevent further publication. If the telephone number(s) meet the withholding requirements discussed above, the Town may withhold them pursuant to the second clause of Exemption (c). In its response the Town indicated that only unlisted telephone numbers, cell phone numbers and email addresses were withheld. This office has consistently found a privacy interest of private citizens with respect to cell phone numbers and email addresses, as a nexus exists between these forms of communication and an unlisted telephone number; there is no public listing of cell phone numbers or email addresses.

Ms. Ann M. Quirk SPR15/399 Page Four July 7, 2015 Accordingly, I find the Town acted within its discretion in withholding unlisted telephone numbers, cell phone numbers and email addresses from the responsive dog license records pursuant to Exemption (c) ofthe Public Records Law. ~s, &wn A. Williams Supervisor of Records cc: Mr. Sean F. Driscoll