Eoin Higgins v. Department of Agricultural Resources (SPR 20171103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24,20 17 SPRl711103 Carol Szocik Records Access Officer Massachusetts Department of Agricultural Resources 25 1 Causeway Street, Suite 500 Boston, MA 021 14 Dear Ms. Szocik: I have received the petition of Eoin 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, 5 10A; 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 1,201 7." Previous appeal The requested records were the subject of a prior appeal. SPR171947 Determination of the Supervisor of Records (July 21,2017). I closed the appeal with the proviso that the Department provide Mr. Higgins with a supplemental response. Following the July 21St determination, the Department provided a supplemental response to Mr. Higgins on August 14, 2017. Unsatisfied with the Department's response, Mr. Higgins petitioned this Office and this appeal SPR1711103, was opened as a result. The Public Records Lnw The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, 5 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 41 9 Mass. 507, 5 1 1 (19 95) (custodian has the burden of One Ashburton Place, Room 1719, Boston, Massachusetts 021 08 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Carol Szocik Page 2 August 24,20 17 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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. oth The Department's August 1 response In its August lothr esponse, the Department indicated that, "[iln response to the redactions that were claimed under Exemption (c) . . . the July 21 letter noted that it was unclear whether the redacted email addresses and telephone numbers belonged to public employees or private citizens. To clarify, this contact information was of private citizens, and the Department believes this information is of a highly personal nature." The Department also indicated that, "[iln addition, the privacy interest of these private citizens in their email addresses and telephone numbers are outweighed by the public interest in obtaining that information, as that information does not show whether 'public servants are carrying out their duties in a law-abiding and efficient manner. ' " Further, the Department indicated that, "[rlegarding redactions on records that were not responsive to your request, I have enclosed a log which lists the names of recipients and senders of the redacted emails which were not responsive to your request because they were not 'To', 'From' or a 'CC' to Ira Icaplan." Exemption (c) As the Department relies on Exemption (c) to withhold the personal telephone numbers and 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 Exemption (c) contains two distinct and independent clauses, each requiring separate analysis. Globe Newspaper Co. v. Boston Retirement Bd., 3 88 Mass. 427,432-33 (1 983). 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

Carol Szocik Page 3 August 24,20 17 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 Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 41 5,427 (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 Id. in a law-abiding and efficient manner. at 292. In the Department's response it clarified that the redacted portions of the responsive record were personal telephone numbers and email addresses of private citizens. Information such as a personal email address is of the type that is not generally available through other public sources or available by any other means of public search. Accordingly, I determine that such treatment of personal email addresses favors a finding of non-disclosure. In a telephone conversation with this Office, the Department explained that it could not determine which responsive telephone numbers were unlisted and/or cell phone numbers. Because these telephone numbers are for private citizens, in this case I see no compelling public interest in favor of disclosure that would outweigh the privacy interests of these private citizens. Consequently, I find that providing these email addresses and telephone numbers will constitute an unwarranted invasion of privacy. Further, I find that the Department has met its burden in regards to the redactions that were made on the records provided which were not responsive to your request. As the log shows, these email communications were not authored or received by Ira Kaplan. Your public records request specifically requested "any and all communications to and from Ira Kaplan and MDAR." As such, the Department properly redacted this illformation from the responsive record.

Carol Szocik Page 4 August 24,2017 Conclusion Accordingly, whereas I find that any public interest in the disclosure of email addresses and personal telephone numbers of private citizens does not outweigh the privacy interest and the Department properly redacted information that was not responsive to your request, I will consider this administrative appeal closed. Sincerely, V Rebecca S. Murray Supervisor of Records cc: Eoin Higgins