Eoin Higgins v. Department of Agricultural Resources (SPR 20170947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 21, 2017 SPR17/947 Carol Szocik Records Access Officer Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114 Dear Ms. Szocik: I have received the petition of Eoi n Higgins of The Berkshire Eagle appealing the response of the Department of Agricultural Resources (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 22, 2017, Mr. Higgins requested a copy of "any and all communications to and from Ira Kaplan, and MDAR from January 1, 2015 to January 1, 2017." Previous appeal The requested record was the subject of a prior appeal. See SPR17/749 Determination of the Supervisor of Records (June 14, 2017). Following the June 14th determination, the Department provided a supplemental response to Mr. Higgins on July 12, 2017. Unsatisfied with the Department's response, Mr. Higgins petitioned this Office and this appeal (SPR17/947) was opened as a result. 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 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

Carol Szocik SPR17/947 Page 2 July 21, 2017 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department's July 12111 response In the July 12, 2017 response, the Department indicates that it "has reviewed the records that were sent to you on March 31, 2017 and confirmed that there were no redactions made on the records sent to you regarding attorney-client privilege." In the Department's March 31, 2017 letter to you, the Department claimed that "[t]he redactions that have been made are exempt from [P]ublic [R]ecords [L]aw, specifically Exemption (c) ..." The Department indicated that "[t]he redactions are for telephone numbers and email addresses" and the "[o ]ther redactions made are for items not responsive to your request." Exemption (c) 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 ofReal 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.

Carol Szocik SPR17/947 Page 3 July 21, 2017 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. In your March 31st letter, which you refer to in your July 1ih response, you indicated that the Department redacted information pertaining to telephone numbers and emails addresses. From the Department's response, it is unclear whether these email addresses and telephone numbers belong to public or private employees. The use of personal email addresses by government officials or employees while conducting any day-to-day business of a government entity renders the emails and email addresses public records. This is because public employees usually have a diminished expectation of privacy in certain information. See id. at 293, citing Georgiou v. Comm'r of the Dep't oflndus. Accidents, 67 Mass. App. Ct. 428, 435-36 (2006). Also, in the Department's March 31st response, it indicated that"[o ]ther redactions made are for items not responsive to your request." It is unclear from the Department's response how those items fall outside the records requested by Mr. Higgins. The Department must therefore provide a written explanation, with specificity, how a particular exemption applies to the telephone numbers and email addresses and clarify the other records that were redacted from the records because they were not responsive to Mr. Higgins' request. 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. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Higgins with a supplemental response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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: Eoin Higgins