Caisse, Donna v. Sandwich, Town of (SPR 20150673)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 10, 2015 SPRlS/673 Mr. Taylor D. White Sandwich Town Clerk Town of Sandwich 145 Main Street Sandwich, MA 02663 Dear Mr. White: I have received the petition of Donna L. Caisse, Esq. appealing the response of the Town of Sandwich (Town) to her request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Attorney Caisse originally requested a copy of the entire voter registration card of a specifically identified individual. In a response dated August 6, 2015, you denied her request, claiming that the responsive record may be withheld under Exemptions (a) and (c) to the Public Records Law. Attorney Caisse subsequently modified her request and now seeks a redacted copy of the voter registration card of the specifically identified individual showing the name and signature only. You denied this modified request in an email dated August 13, 2015 "for the reasons specified in my August 6, 2015 response to your original request." Attorney Caisse appealed this denial. As a result, I will analyze the August 6 response to determine whether it is in compliance with 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, § 1 0(c ); 950 C.M.R. 32.08(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 town of the Commonv,realth, unless falling within a statutory exemption. G. L. e. 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 (c ); 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-:·5914 www.sec.state.ma. us/ pre

Mr. Taylor D. White SPR15/673 Page Two December 10, 2015 Exemption (a) In your August 6 response, you claim any responsive record may be withheld under Exemption (a) of the Public Records Law. Exemption (a) to the Public Records Law applies to records which are "specifically or by necessary implication exempted from disclosure by statute. You state that one such statute is G. L. c. 66, § 10 (d ) which exempts from disclosure the home addresses and telephone number of law enforcement and other public safety or criminal justice personnel in the custody of employers, as well as the names and home addresses of any family members of such persons. However, G. L. c. 66, § 10 ( d) does not apply to withhold the name and signature shown on the voter registration card. You also claim G. L. c. 51, §4( e) operates to withhold the record. This statute states: The name and address of any law enforcement or public safety personnel who so requests shall not appear on the streetlist and such names shall not be disclosed to any person. In your August 6 response you indicate the specified individual is designated as a public safety official in the State's Voter Registration Information System (VRIS). However, while G. L. c. 51, §4(e) addresses public safety officials' information on the street list, it does not pertain to the voter list or voter registration information. Therefore, I find G.L. c. 51, §4(e) does not apply to withhold the name and signature shown on the voter registration card. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). It should be noted that pursuant to G.L. c. 51, §44, a person seeking to register to vote must sign an affidavit of voter registration. See also 950 C.M.R. 57.04(2)(a). The affidavit of voter registration may be withheld for specific reasons described in G.L. c. 51, §44, none of which the Town claims are applicable to this request. The Town also claims that the release of the responsive record is restricted pursuant to G. L. c. 214, § lB. The statute provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages G. L. c. 214, § lB This office has no jurisdiction to rule on the applicability of this statute. Decisions regarding whether privacy rights have been violated under this statute are the jurisdiction of the superior court, therefore, this is not a valid application of Exemption (a). To operate through Exemption (a), a statute must specifically or by necessary implication exempt records from

Mr. Taylor D. White SPR15/673 Page Three December 10, 2015 public disclosure. G. L. c. 4, § 7 (26)(a). Therefore, I find G. L. c. 214, § 1B does not apply to withhold the name and signature shown on the voter registration card. Exemption (c) You also claim Exemption (c) permits the Town to withhold the responsive record under Exemption (c). Exemption (c) of the Public Records Law exempts from disclosure: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute and unwarranted invasion of personal privacy. G. L. c.4, §7, cl. 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, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause ofExemption (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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property 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, it only permits custodians of records to withhold "intimate details of a highly personal nature" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Attorney Gen. v. Assistant Comm'r ofthe Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). The Town has not explained how the name and signature ofthe specified individual are intimate details of a highly personal nature as required to withhold information under Exemption (c). Conclusion I find the Town has not met its burden of proving with specificity how a redacted copy of the voter registration card of a specifically identified individual showing the name and signature only may be withheld under Exemption (a) or Exemption (c). It should be noted that Attorney Caisse informed this office that she would possibly be amenable to viewing the record instead of receiving a copy of the record. The Town and Attorney Caisse are encouraged to coordinate a resolution to this matter. G. L. c. 66, § 1O (a) (requester may inspect a public record or be provided a copy thereof upon payment of a reasonable fee). However, whereas the Town has not overcome the presumption that the requested records are public, the Town is hereby ordered, within ten (1 0) days of this order, to provide Ms. Caisse with the requested records. If the Town maintains that any portion of the responsive

Mr. Taylor D. White SPR15/673 Page Four December 10, 2015 records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Caisse 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 of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid you must provide the responsive records. yours, Supervisor of Records cc: Ms. Donna Caisse, Esq.