Richard Nangle v. Brookline, Town of (SPR 20180579)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2018 SPRlS/579 Patrick J. Ward Town of Brookline 333 Washington Street, Room 208 Boston, MA 02445 Dear Mr. Ward: I have received the petition of Robert Nangle appealing the response of the Town of Brookline (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on April 4, 2018, Mr. Nangle requested the email list the Town uses to disseminate information. The Town provided a response on April 23, 2018, indicating that it does not possess such records and that even if it does, the records would otherwise be exempt from disclosure under Exemption (c) of the Public Records Law. Unsatisfied with the Town's response, Mr. Nangle petitioned this office and this appeal, SPRl 8/579, was opened as a result. Petitions to the Supervisor of Records Mr. Nangle is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses .. ." 950 C.M.R. 32.08(1)(g). 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, § lO(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 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

Patrick J. Ward SPR18/579 Page2 May 10, 2018 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlte Town's April 23rd response In its April 23rd response, the Town indicates that Mr. Nangle's request "seeks private email address of individuals who subscribe to 'Notify Me', an online service on the Town's website that permits subscribers to request notification of board, commission, and committee meetings along with updates by email." In reference to the definition of public records, the Town asserts that "the email addresses provided by 'Notify Me' subscribers are not 'received' by the Town because the subscriber information is transmitted directly to a third party vendor and therefore is not in the Town's possession, custody or control." The Town further contends that even if it possessed the responsive records, it "would consider it exempt from disclosure under Exemption ( c) of the Public Records Law because it seeks the private email addresses of individual subscribers ...." Public records; agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). In the Town's response, it indicated that the requested records are "not in the Town's possession, custody or control." However, the Town also indicated in its response that "Notify Me" is "an online service on the Town's website that permits subscribers to request notification of board, commission, and committee meetings along with updates by email." Further, the Town claims the subscriber list is not "received" by the Town, because it "is transmitted directly to a third party vendor. ... " The Town is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. In light of the above information, it is unclear how an agency relationship does not exist between the Town and the third party vendor. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607-08 (1996) (discussing agency relationship between a public and private entity within the context of the Public Records Law). The Town must clarify this matter.

Patrick J. Ward SPR18/579 Page 3 May 10, 2018 Exemption (c) The Town's response indicates "even if the requested information was in the Town's possession, custody or control, the Town would consider it exempt from disclosure under Exemption (c ) of the Public Records law because it seeks the private email addresses of individual subscribers." Exemption (c ) permits the withholding of: 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). Exemption ( c) 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, 4 77 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. With respect to the portions of responsive records that contain private email addresses,

Patrick J. Ward SPR18/579 Page4 May 10, 2018 I find that any public interest in the disclosure of personal email addresses of citizens does not outweigh the privacy interest. Therefore, I find the Town may properly withhold the private email addresses of individual subscribers under the second clause of Exemption ( c ). However, it is unclear whether the responsive records contain any emails that are not private email addresses, e.g., Town issued email addresses. The Town must clarify this matter. See G. L. c. 66, § lO(b )(iv) (written response must "identify any records, categories ofrecords 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 ... "). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Town is ordered to provide Mr. Nangle with a response to the request, provided 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: Robert Nangle