Wayne A. Perkins, Esq. v. Executive Office of Education - Department of Early Education and Care (SPR 20161231)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 6, 2017 SPR16/1231 Felicia Sullivan, Esq. General Counsel Department of Early Education and Care 51 Sleeper Street Boston, MA 0221 0 Dear Attorney Sullivan: I have received the petition of Wayne Perkins appealing the response ofthe Department of Early Education and Care (Department) to a September 12, 2016 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Perkins requested a copy of records that "identify all of the certified teachers and assistants, their EEC certifications and their mailing addresses for those located in the Greater Boston and North of Boston districts." Previous appeal This request was the subject of a previous appeal. See SPR16/986 Determination of the Supervisor of Records (November 23, 2016). In the November 23 determination this office found the Department failed to properly respond to a request for public records. The Department was ordered to provide Mr. Perkins with a detailed response to the request, prepared in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, you informed this office that the Department provided responses to Mr. Perkins in letters dated November 15, 2016 and December 2, 2016. I will analyze these responses in this determination. Present appeal In the November 15 and December 2 responses the Department explains it withheld responsive addresses under Exemption (c). Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data 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

Felicia Sullivan, Esq. SPR16/1231 Page 2 January 6, 20 17 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, 432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause of Exemption (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. Real Prop. Dep't, 380 Mass. at 625. The types of personal information which the second clause ofthis exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records custodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 3 77 Mass. 151, 156 (1979). In the November 15 response you indicate the Department provided "a list of the programs without including the personal mailing addresses." You explain the Department "has determined that the personal mailing addresses of individuals within [the Department's] database are exempt from the [P]ublic [R]ecords [L]aw. The personal mailing addresses of those teachers on record fell within the Privacy Exemption pursuant to M.G.L. c. 4, § 26(c), which protects information relating to a specifically named individual the disclosure of which may constitute an unwarranted invasion of personal privacy." You further state "[the Department] has determined that the privacy of the individuals whose names are on file with [the Department] as having a teaching certificate outweighs the public's interest in receiving their addresses." In the December2 response you explain the Department's website "does not inform users or request permission to disclose that registrants' information to third parties." The Department also cites the finding in Georgiou v. Comm'r of the Dep't oflndus. Accidents, 67 Mass. App. Ct. 428, 434 (2006) to support its position.

Felicia Sullivan, Esq. SPR16/1231 Page 3 January 6, 2017 The Georgiou court acknowledged that aggregated information "may intensify the invasion of privacy and weigh against disclosure;" however, the privacy concerns in Georgiou pertained to disclosure of employees' names, addresses, coupled with the fact that the employees were sufficiently disabled to be out of work five or more days. See Georgiou, 67 Mass. App. Ct. at 435. The court found this information to be "more akin to that provided to a State agency in connection with obtaining government benefits" and a "distant kinship" to the medical clause of Exemption (c). Id. at 436. In identifying the existence of privacy interests, the factors for consideration include: whether disclosure would result in personal embarrassment to an individual of normal sensibilities, whether the materials sought contain "intimate details" of a "highly personal" nature, and whether the same information is available from other sources. See Pottle v. School Committee of Braintree, 395 Mass. 861, 866 (1985); see also Cape Cod Times v. Sheriff of Barnstable County, 443 Mass. 587, 595 (2005). In the instant appeal, however, the records at issue do not appear to involve medical or disability information; instead, the responsive records reveal whether an individual has registered with the Department. The Department has not established how disclosure of this information would result in embarrassment to an individual of normal sensibilities, reveal medical information, nor disclose such private information as a person's income or relationship with other private persons as exemplified by case law. See Collector of Lynn, 3 77 Mass. at 157. I find the Department has not met its burden to establish how the withheld addresses constitute "intimate details of a highly personal nature" as required by Exemption (c). Whereas the first prong of the test is not satisfied, there is no need to determine whether the public interest in disclosure is greater than any privacy interest. I understand a member of my staff contacted you about this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Perkins a revised response to the request, prepared 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 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Perkins