David M. Belcher v. Division of Occupational Licensure (SPR 20171736)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 8, 2018 SPR17/1736 Rachel Antoine Division of Professional Li censure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. Antoine: I have received the petition of David M. Belcher, Esq. appealing the response of the Division of Professional Licensure (Division or DPL) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Belcher requested "the original application, renewal forms, insurance coverage information, and complaints" for identified licenses held under the Board of Registration of Message Therapy. In a response dated November 29, 2017, the Division provided responsive records with portions redacted under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(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, § 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. 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 (c) Exemption ( c) permits the withholding of: 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

Rachel Antoine SPRl 7/1736 Page 2 January 8, 2018 personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). This exemption contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). 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. In its initial November 29th response, the Division cited Exemption (f), as well as Exemption ( c) to justify redacting "personal home and email addresses, and cell phone numbers." The Division subsequently clarified in a November 30, 2017 email that "[t]he basis for the redactions you reference is the privacy exemption" and that Exemption (f) "does not form the basis for any redaction in these materials." In his appeal petition to this office Attorney Belcher objects to the redaction of an insurance policy number. He also objects to "the redaction of a large block of language in the license applications toward the end: that appeared below question 13 in the original application, above question 18 in the Multiple Therapist Establishment Application dated June 17, 2013, and

Rachel Antoine SPRl 7/1736 Page 3 January 8, 2018 above question 17 in the Single Therapist Establishment Application dated September 8, 2015." Attorney Belcher further notes "[bJ ased on the context and the timing, we are most interested in reviewing what was redacted above question 17 in the Single Therapist Establishment Application dated September 8, 2015." Based on its responses, the Division has not established how disclosure of the redactions at issue would result in personal embarrassment to an individual of normal sensibilities, how the materials sought contain intimate details of a highly personal nature, nor has it explained whether the same information is available from other sources. PETA, 477 Mass. at 292. Therefore, it has not met its burden to justify the redactions at issue under Exemption ( c) . G. L. c. 66, § 1O (b )(iv) (requiring the agency or municipality to identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). Additional responsive records Attorney Belcher also explains he is appealing "the failure of the DPL to provide any documentation concerning complaints involving the licensees" and he provides information regarding the potential existence of additional responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Therefore, the Division must clarify whether it possesses any additional responsive records and provide such records in a manner consistent with the Public Records and its Regulations. I understand a Public Records Division staff attorney contacted you about this appeal. Conclusion Accordingly, the Division is ordered to provide Attorney Belcher with responsive records 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 a.tpre@sec.state.ma.us. The Division may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: David M. Belcher, Esq.