James L. Donovan v. Department of Public Utilities - Legal Division (SPR 20170563)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 9, 2017 SPR17/563 Sarah A. Smegal, Esq. Legal Division Department of Public Utilities One South Station Boston, MA 02110 Dear Attorney Smegal: I have received the petition of James L. Donovan, Jr. of the Teamsters Local Union No. 25 appealing the response of the Department of Public Utilities (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Mr. Donovan seeks a list regarding all approved drivers for Uber USA, LLC; Embraques Boston, Inc.; Fasten, Inc.; Lyft, Inc.; Rasier, LLC; SafeHer, Inc. (d/b/a Safr); Wuleeb, Inc. and any other related digital transportation network operating in the Commonwealth of Massachusetts. "Digital Network" means any online-enabled application, software, website or system offered or utilized by a Transportation Network Company that enables pre-arranged rides with Transportation Network Drivers. See G. L. c. 159AYz. Donovan specifically requested: 1. The drivers' legal name (first, middle and last), and 2. The drivers' email address. The Department denied the request under Exemption (a) and Exemption (c) of the Public Records Law. Mr. Donovan petitioned this office and an appeal was opened. 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, § lOA(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. 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

Sarah A. Smegal, Esq. SPRl 7/563 Page2 May 9, 2017 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, § 1 O(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 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 (a) In your April 24, 2017 response, you explained to Mr. Donovan that the responsive list of names of drivers certified by transportation network companies and the drivers' email addresses is exempt from public disclosure pursuant to G. L. c. 159AYz, § 8(e) regarding Transportation Network Companies, as this statute operates through Exemption (a) of the Public Records Law. A "transportation network company" is defined as a corporation, partnership, sole proprietorship or other entity that uses a digital network to connect riders to drivers to pre-arrange and provide transportation. G. L. c. 159AYz, § 1. Exemption (a), known as the statutory exemption, permits the withholding of records that are: 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be

Sarah A. Smegal, Esq. SPRl 7/563 Page 3 May 9, 2017 subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: [A ]ny record furnished to the Division of Public Utilities (Division) or other state agency by a transportation network company pursuant to this chapter including, but not limited to the roster of permitted transportation network drivers, shall not be considered a public. record as defined in clause Twenty-sixth of section 7 of chapter 4 or chapter 66. G. L. c. 159AYz, § 8(e) (2017 ed.) Records. (emphasis added). In a discussion on May 5th, you explained to a Public Records Division attorney that the requested information is restricted as "roster" information of the drivers certified by the digital transportation network company or companies for which they drive. The roster must be maintained and updated by the individual transportation network companies on a monthly basis. Such information is only provided to the Department for use in conducting a secondary background check of the companies' drivers and only upon the consent of the individual drivers. In accordance with the Department's authority regarding rulemaking per G. L. c. 25, § 23(a); G. L. c. 30A, § 2 and G. L. c. 159AYz, the Department has proposed regulations pertaining to the Division of Transportation Network. The Department has scheduled a hearing on May 23, 2017 for proposed regulations that would define "roster" information as: 1. Legal First Name; 2. Legal Middle Name; 3. Legal Last Name; 4. Former Name(s); 5. Current Address; 6. Place of Birth (City and State); 7. Driver's License Number; 8. Driver's License State; 9. Date of Birth; 10. Last Six Digits of Social Security Number; and 11. Electronic Mail Address. 220 C.M.R. 274.06(1)(c) (Transportation Driver Network Background Check) (Proposed Regulation Published April 7, 2017).

Sarah A. Smegal, Esq. SPRl 7/563 Page 4 May 9, 2017 Seeing that the requested information falls under the Department's interpretation of "roster" information which is exempt by statute, I find that the Department has supported its Exemption (a) claim to withhold the responsive information from public disclosure as specifically restricted by G. L. c. 159AYz, § 8(e). Accordingly, this administrative appeal is closed. If Mr. Donovan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: James L. Donovan