Richard Maximus Strahan v. Division of Marine Fisheries (SPR 20180979)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 11,2018 SPR181965; SPR181979 Jared A. Silva Keeper of the Records Division of Marine Fisheries 25 1 Causeway Street, Suite 400 Boston, MA 021 14 Dear Mr. Silva: I have received the petition of Richard Maximus Strahan appealing the response of the see Division of Marine Fisheries (Division) to a request for public records. G. L. c. 66, tj 10A; 950 C.M.R. 32.08(1). Specifically, Mr. Strahan requested various categories of records related to permit holders, including contact information as well as data regarding turtle and whale entanglements. The Division initially responded on June 27,2018 and provided a supplemental response on July 6,2018 . It should be noted that SPR181965 and SPR181979 pertain to the same request and responses; therefore, both appeals will be addressed in this determination. 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, tj 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, 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 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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

Jared A. Silva Page 2 July 11,2018 Current appeal In its July 6thr esponse the Division provided a spreadsheet titled "Trap Permit Holder Information," documents related to Leatherback turtle entanglements for years 2001 - 2017, and documents related to large whale entanglements. The Division indicates that it withheld the names of minors, cell phone numbers, email addresses, and residential addresses under Exemption (c) of the Public Records Law. G. L. c. 4, 5 7(26)(c). In his appeal petition, Mr. Strahan indicates he seeks the contact information for the license holders. Exemption (c) 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 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. 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. 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

Jared A. Silva Page 3 July 11,2018 public has a recognized interest in lcnowing whether public servants are carrying out their duties a. in a law-abiding and efficient manner. at 292. In his appeal petition Mr. Strahan notes he is "requesting the names and contact information for the COMMERCIAL fishing operation that the Division of Marine Fisheries licenses to deploy lobster pot gear in Massachusetts waters." (emphasis in original). It is unclear whether the phone numbers and email addresses being withheld are personal in nature. Therefore, it is unclear whether the Division may withhold this information under the second clause of Exemption (c). Further, residential addresses are available from other sources. See id. (a factor to consider when assessing privacy interests is whether the same information is available from other sources). Massachusetts law requires the creation of "street lists" of all persons residing in the Commonwealth. See Pottle v. School Comrn. of Braintree, 395 Mass. 861, 866 (1985). These street lists, which are available to the public in the aggregate, include the names, residential addresses, and occupations for the residents listed. See G. L. c. 51, 55 4, 6; Pottle, 395 Mass. at 866. Further, the name, address and party affiliation of voters are required to be publically available in the aggregate on the "Voter's List." See G. L. c. 5 1, 5 55. ("All first voting lists shall be printed and available for public distribution not later than the first day of July in state election years."). It should be noted that other statutes require that names and addresses be made publically available. See G. L. c. 54, 5 91 (requiring public inspection a list including the names and addresses of voters who have applied for absentee ballots); G. L. c. 51, $5 41, 42H (completed affidavits of voter registration, which contain name; residential address; date of birth; party affiliation; former name and address, if any; and affirmation of U.S. citizenship status are publically available from cities). In light of the factors articulated in PETA, I find the Department has not demonstrated a strong privacy interest in the residential addresses within the responsive records. Therefore, I find the Department has not met its burden to withhold residential addresses under Exemption (4- Conclusion Given that the Division did not meet its burden to explain how an exemption applies to withhold the information described above, the Division is ordered to provide Mr. Strahan with a supplemental response, in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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.

Jared A. Silva Page 4 July 11,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Maximus Strahan