James Turcotte v. Department of Public Safety (SPR 20161208)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records December 21, 2016 SPR16/1208 Stephen Carley, Esq. Assistant General Counsel Department of Public Safety One Ashburton Place, Room 1301 Boston MA, 02108-1618 Dear Mr. Carley: I have received the petition of Jim Turcotte of the Chapter 146 Association appealing the response of the Department of Public Safety (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Turcotte requested copies of contact information on specified classes of licenses issued by the Department. In a response dated December 7, 2016 the Department provided a disc containing the responsive information. The Department redacted email addresses pursuant to Exemption ( c ), the privacy exemption to the Public Records Law. G. L. c. 4, §7(26)(c). The Department indicated in its response that "no whole documents were withheld." Right ofA ccess In Mr. Turcotte' s petition he explains that his organization is conducting an impact study as a result of the Department's proposed legislation and they desire to use electronic correspondence. Please note that the purpose of Mr. Turcotte's organization request for records in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). 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, § lO(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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

Stephen Carley, Esq. SPR16/1208 Page2 December 21, 2016 form or characteristics, made or received by any officer or employee of any town 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( c ); see also District 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. Exemption (c) In its December 7 letter, the Department indicated its intent to withhold email addresses 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) 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 of the 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). 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. Mr. Turcotte is seeking email addresses associated with certain licenses issued by the Department. Based on the Department's December 7 response, it is unclear whether the

Stephen Carley, Esq. SPR16/1208 Page 3 December 21, 2016 withheld emails addresses are personal email addresses of private citizens or Department employees. The Department must clarify this matter. It should be noted that a public employee has a diminished expectation of privacy with respect to use of personal email used in an official capacity. The Department must also explain how email addresses constitute an "intimate detail of a highly personal nature" and how the privacy interest associated with the disclosure of the information outweighs the public interest in disclosure. I understand an attorney on my staff contacted you about this matter and provided a copy of the file associated with this appeal. Order Accordingly, the Department is hereby ordered to provide Mr. Turcotte with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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 sec.state.ma.us. cc: Jim Turcotte