Robert W. Anderson, Jr. v. Executive Office of Consumer Affairs and Business Regulation - Division of Professional Licensure (SPR 20170412)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2017 SPR17/412 James A. O'Connor, Esq. Division of Professional Licensure Office of the Legal Counsel 1000 Washington Street Boston, MA 02118 Dear Attorney O'Connor: I have received the petition of Robert W. Anderson, Jr. appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Anderson requested a copy of computer print-out details of the licensing information of four identified social workers, including the business addresses, level of education and any history of disciplinary action against these individuals. The Division provided Mr. Anderson with computer print-outs from the Division's licensing database in redacted format pursuant to Exemption (n) of the Public Records Law. The Division informed Mr. Anderson none of the individuals have any disciplinary history. However, the Division withheld the business address and level of education of each of the identified individuals. Mr. Anderson appealed. Status of the Requester and Reason for the Request Mr. Anderson has indicated that he has a justifiable need for each of the licensee's education and business address in order to serve upon each of the individuals identified in the request with legal documents regarding legal action he has with these individuals and their possible testimony in his court action. It is important for Mr. Anderson to understand that his status in an underlying matter which led to the public records request does not afford him any greater right of access to the requested information under the Public Records Law. 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). Accordingly, Mr. Anderson's status will play no role in a determination regarding the Public Records Law. 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

James A. 0' Connor, Esq. SPR17/412 Page 2 April 12, 2017 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, § 1O A( d); 950 C.M.R. 32.03(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 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff members will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Exemption (n) A review by this office of the records provided to Mr. Anderson reveals that the Division redacted Social Security Numbers, dates of birth, addresses, and email addresses pursuant to Exemption (n) of the Public Records Law. Exemption (n) applies to records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security.

James A. O'Connor, Esq. SPR17/412 Page 3 April 12, 2017 G. L. c. 4, § 7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would undermine public safety or cyber security. It is the duty of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety or cyber security. Given the unique statutory construction of Exemption (n), records released to a particular individual through this exemption need not be released to all subsequent requestors. It is unclear how Exemption (n) allows the Division to withhold business addresses, licensees' level of education and history of any complaints against the identified licensees. The requested information is not the type of information that Exemption (n) would allow a records custodian to withhold. The Division is advised that when claiming exemptions, a detailed written response concerning the applicability of the exemption to the particular information being withheld must be provided. The statutory exemptions are narrowly construed and not blanket in nature; any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979); see also G. L. c. 66, § IO(a). Order Accordingly, the Division has not met its burden under Exemption (n) and has not claimed any additional exemptions to allow for the withholding of these records. Consequently, the Division must provide the requested records or a response within ten (10) business days explaining with specificity how these requested records are not subject to disclosure. 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: Robert W. Anderson, Jr.