Barry Stringfellow v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (SPR 20171233)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 12, 20 17 SPR17/1233 Steven Sayers, Esq. General Counsel Woods Hole, Martha's Vineyard and Nantucket Steamship Authority P.O. Box 284 Foot of Railroad Avenue Woods Hole, Massachusetts 02543 Dear Attorney Sayers: I have received the petition of Barry Stringfellow appealing the response of the Woods Hole, Martha's Vineyard and Nantucket Steamship Authority (SSA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Stringfellow requested "access to and copies of records reflecting the annual amounts paid the Steamship Authority for Transportation by the Oak Bluffs Ambulance Service, and number of trips taken, on any Steamship Authority Vessel, for the last three years." Previous appeal This request was the subject of a previous appeal. See SPR17/ 1169 Determination of the Supervisor of Records (September 7, 2017). I closed the appeal upon learning the SSA had provided Mr. Stringfellow with a supplemental response. The supplemental response indicated the SSA's intention to withhold any responsive records under the SSA's Enabling Act as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Mr. Stringfellow appealed the substantive nature of the SSA's supplemental response and this appeal (SPR17/1233) 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). 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

Steven Sayers, Esq. SPR17/1233 Page 2 September 12, 2017 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. Exemption (a) 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 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 applicable statute that the SSA cited to withhold the requested records, pursuant to Exemption (a) is the SSA Amended Enabling Act. St. 1960, c. 701, § 4; Clause U) added by St. 2003, c. 26, § 651, eff. July 1, 2003. The SSA's customers' confidential information, which is statutorily exempt from disclosure for the purposes of maintain customer confidentiality, is defined as: [A]ll information relating to specifically named customers using the authority's reservations system including, but not limited to, passenger names, home addresses, email addresses, telephone numbers, credit and account data and the dates and times of their reservations and sailings. Such information shall not be a public record, although it may be used and disclosed by the authority as necessary in connection with the appropriate conduct of its operations and in connection with law enforcement activities. The authority shall provide to a customer requesting any such information, all

Steven Sayers, Esq. SPR17/1233 Page 3 September 12, 2017 information that the authority has pertaining to the customer. The authority shall obtain the express, written consent of the customer before releasing customer information to a third party for commercial or noncommercial purposes. St. 1960, c. 701, § 4; Clause G) added by St. 2003, c. 26, § 651, eff. July 1, 2003. The SSA's response did not contain the specificity required in a denial of access to public records. Instead, the SSA's response merely cites Exemption (a) and the language of the SSA's Enabling Act without any further explanation as to the exemption's applicability to the requested records. The SSA is not permitted to issue a blanket denial without providing any further information with respect to the requested records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. It is also unclear why the requested records must be withheld in their entirety, and why it is not possible to redact exempt portions and release the remainder. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). I understand a member of the Public Records Division staff contacted you and you indicated the SSA would provide a supplemental response to Mr. Stringfellow. Conclusion Accordingly, I will consider this administrative appeal closed with the proviso that the SSA provide a response to Mr. Stringfellow 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. Mr. Stringfellow may appeal the substantive nature of the SSA's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Barry Stringfellow