Thomas Workman Jr., Esq. v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20180851)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 25, 2018 SPRlS/851 William J. Doyle, Esq. Massachusetts Department of Transportation Office of the General Counsel 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Attorney Thomas J. Workman appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 14, 2018, Attorney Workman requested, in relevant part, the "last 3 digits of the drivers license number" "for each Massachusetts drivers license that was active at any time between January 1, 2011 and the current date." The Department denied his request, claiming that the responsive records are exempt from disclosure pursuant to the federal Driver's Privacy Protection Act. 18 U.S.C. § 2721(a); 18 U.S.C. § 2725(3). 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, § 1 O(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. 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

William J. Doyle, Esq. SPR18/851 Page 2 June 25, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (a) The Department's response, dated May 3, 2018, indicates that "[d]espite ongoing research, [it has] been unable to find any statute, regulation, or case law which would allow the release of any part of the driver's license number" and cites to the DPP A as its basis for withholding the license numbers. 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 DPPA states in relevant part: [a] State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record ... 18 U.S.C. § 2721(a). "Personal information" is defined as:

William J. Doyle, Esq. SPR18/851 Page 3 June 25, 2018 information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information ... 18 U.S.C. § 2725(3). Whereas a driver's license number falls within the type of personal information listed in the DPPA statutes as information that shall not be disseminated, I find the Department may properly withhold the license numbers in their entirety. Conclusion Accordingly, whereas I find the Department may permissibly withhold responsive records under Exemption (a), I will now consider this administrative appeal closed. If Attorney Workman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Thomas J. Workman, Esq.