Driscoll, Sean v. Eastham, Town of (SPR 20150408)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 17,2015 SPRlS/408 Ms. Susanne Fisher Town Clerk Town of Eastham 2500 State Highway Eastham, MA 02642-2544 Dear Ms. Fisher: I have received the petition of Sean F. Driscoll of the Cape Cod Times appealing the response ofthe Town of Eastham (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. Town provided a spreadsheet containing responsive information, however it withheld telephone numbers. In a May 5, 2015 response you merely stated "we do not provide telephone numbers as some may be unlisted." When Mr. Driscoll inquired as to the basis for the denial of access to records the Town responded by citing exemptions to the Public Records Law as well as statutory bases to support its claims. G. L. c. 4, § 7 (26) (a), (c) (statutory and privacy exemptions); G. L. c. 214, § 1B (right to privacy statute); G. L. c. 66, § 10 (d) (right to privacy for certain public officials employed by custodian ofrecords). 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 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Susanne Fisher SPR15/408 Page Two July 17,2015 Exemption (a) The Town indicated its intent to withhold the records pursuant to the so-called Right to Privacy statute as it operates through Exemption, (a) of the Public Records Law. 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 Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The Right to Privacy does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. Exemption (c) The Town indicated its intent to withhold the records pursuant to the second clause of Exemption (c) ofthe 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) 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, 380 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 of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979).

Ms. Susanne Fisher SPR15/408 Page Three July 17,2015 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. There can be little, if any, privacy interest in a telephone number that is listed in a readily accessible public directory. See Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985) (availability of information elsewhere relevant in determining privacy interest). As such, numbers, therefore, do not rise to the level of intimate details; the privacy exemption does not exempt them from mandatory disclosure. Exemption (c) does not automatically render all telephone numbers exempt in their entirety. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). The requested records may contain some non-exempt information. If so, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Public Inspection and Copies of Records Pursuant to statute, "[t]he home address and home telephone number oflaw enforcement ... shall not be public records in the custody of the employers of such personnel". Accordingly, the Town may redact the home telephone numbers only of law enforcement employed by the Town. See G. L. c. 66, § 10(d). Conclusions Accordingly, whereas the Town has not overcome the presumption that the redacted portion ofthe responsive records are public, the Town is hereby ordered, within ten (10) days of this order, to provide Mr. Driscoll with the redacted portion of the records, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Driscoll a written explanation, with specificity, how a particular exemption applies to each record. 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.

Ms. Susanne Fisher SPR15/408 Page Four July 17,2015 A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. a Supervisor of Records cc: Mr. Sean F. Driscoll