James Tusino v. Office of Public Safety and Inspections (SPR 20170866)

. The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6, 2017 SPR17/866 Stephen Carley, Esq. Assistant General Counsel Office of Public Safety and Inspections 1 Ashburton Place, Room 1301 Boston, MA 02108 Dear Attorney Carley: I have received the petition of James Tusino appealing the response of the Office of Public Safety and Inspections (Office) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Tusino requested from the Office "an updated disc ofthe hoisting licensees." Mr. Tusino requested that the list contain certain information regarding the licensees including the "license number, expiration date, first name, last name, address, city, state, zip code, and email address." The Office responded to his request by providing him with all the requested information except the email addresses. The Office claimed the email addresses of the licensees were exempt from disclosure pursuant to Exemption (c). G. L. c. 4, § 7(26)(c). Mr. Tusino appealed the Office's withholding of the email addresses pursuant to Exemption (c). 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, § 10A(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. 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 SPR17/866 Page 2 July 6, 2017 The Office's May 151 response ft In its May 15th response, the Office indicated that it was withholding email addresses pursuant to the second clause of Exemption (c) of the Public Records Law. As the Office relies on Exemption (c) to withhold the hoisting licensees' personal email addresses, this exemption merits consideration. Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, 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 separate analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause, which applies to requests for records that implicate privacy interests, is relevant to this appeal. 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, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature;and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n. 13; 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 balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292.

Stephen Carley SPR17/866 Page 3 July 6, 2017 In your May 15th response you indicate that "the Office has redacted information pertaining to licensees' personal emails ... because its disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public's interest in disclosure of the material." You also indicate that "[n]o whole documents or records were withheld." The personal email address of a hoisting licensee relates to a specific individual and is of the type of information that is not generally available through other public sources or available by any other means of public search. Such treatment of email addresses favors a finding of non disclosure. Furthermore, I see no compelling public interest in favor of disclosure that would outweigh the privacy interests of the licensees. The fact that the Office has on previous occasions provided complete responses including email addresses is not relevant in deciding this matter. Conclusion It is the finding of this office that an applicant who provides a personal email address in order to be licensed maintains a reasonable expectation of privacy with respect to that information. These are individuals who have provided information as a means for communication with Office personnel with respect to their application for licenses. The public interest in disclosure of this information does not outweigh the privacy interests associated with the redacted information. Accordingly, the Department may permissibly withhold responsive information pursuant to the second clause of Exemption (c). I will consider this administrative appeal closed. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: James Tusino