Driscoll, Sean v. Harwich, Town of (SPR 20150449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 20, 2015 SPRlS/449 Ms. Anita Doucette Town Clerk Town of Harwich 732 Main Street Harwich, MA 02645 Dear Ms. Doucette: I have received the petition of Sean F. Driscoll of the Cape Cod Times appealing the response of the Town of Harwich (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 of the 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 with telephone numbers redacted. When Mr. Driscoll inquired as to what exemption to the Public Records Law 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), (o) (statutory, privacy, public employee home number exemptions); G. L. c. 214, § 1B (right to privacy statute). 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. 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. G. L. c. 214 § B Exemption (a), known as the statutory exemption, permits the withholding of records that are: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Anita Doucette SPR15/449 Page Two August 20, 2015 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 statute 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) 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)(c) 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 of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 3 77 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 ofExemption (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.

Ms. Anita Doucette SPR15/449 Page Three August 20, 2015 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). Disclosure of an unpublished number can 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). Exemption (o) Exemption (o ) applies to: the home address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority ofthe commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 694.

Ms. Anita Doucette SPR15/449 Page Four August 20, 2015 G. L. c. 4, § 7 (26)(o) Exemption ( o) applies to records that contain the home address or telephone number of an employee while identifying the individual as a government employee. Town may redact the home telephone numbers only if the responsive record identifies the individual as employed by the Town. Accordingly, whereas the Town has not overcome the presumption that the redacted portion of the 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. 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. cc: Mr. Sean F. Driscoll