Richard Maximus Strahan v. Division of Marine Fisheries (SPR 20181122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 8, 2018 SPRlS/1122 Jared A. Silva Keeper of the Records Division of Marine Fisheries 251 Causeway Street, Suite 400 Boston, MA 02114 Dear Mr. Silva: I have received the petition of Richard Maximu s Strahan appealing the response of the Division of Marine Fisheries (Division or DMF) to a request for public records. G. L. c. 66, § lOA; see also 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. Previous appeals This request was the subject of previous appeals. See SPR18/965, SPR18/979 Determination of the Supervisor of Records (July 11, 2018). In my July 11th determination I ordered the Division to provide Mr. Strahan with a supplemental response, in a manner consistent with the order, the Public Records Law, and its Access Regulations (Regulations). The Division responded on July 24, 2018. Mr. Strahan appealed and SPR18/1122 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, § 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

Jared A. Silva SPR18/1122 Page 2 August 8, 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. Current appeal In a July 6, 2018 response 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, § 7(26)(c). In his appeal petition, Mr. Strahan indicates he seeks the contact information for the license holders, specifically "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). 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 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.

Jared A. Silva SPRI8/1122 Page 3 August 8, 2018 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. Email addresses and phone numbers In my July 11th determination I found it was unclear whether the phone numbers and email addresses being withheld are personal in nature. In its July 24th response the Division explains "as part of its permit application process, DMF collects information such as phone numbers, e-mails and addresses. These applications do not require that the applicant differentiate as to whether the address provided to DMF is a private residential address or a business address; a private unlisted phone number, cell phone number or publically listed phone number; or whether the e-mail is a private personal e-mail or a public business e-mail." The Division indicates "[u]nless specifically noted by the applicant, DMF reasonably presumes that this information comprises private emails, private cell phone numbers and residential addresses." You note that this presumption is "based on the types of individuals, generally, who apply for lobster permits and DMF's regulatory requirements." The Division claims "[i]n the circumstances of this case and consistent with this August 24, 2017 decision by the Supervisor of Records (SPRl 7/1103), there is no compelling public interest in favor of disclosing the personal email addresses and phone numbers of DMF-permitted fishermen that outweighs the privacy interests of these private persons." Based on his appeal, it appears Mr. Strahan is only seeking information related to commercial permit holders. The Division explains that with respect to commercial fishermen, "322 CMR 7.03(6)(c) and 7.06(5) require that all state-waters lobster and fish trap businesses shall be owner-operated. This regulatory requirement results in the vast majority of commercial trap fishermen permitted by DMF being sole proprietors who use their residential addresses and private telephone numbers and e-mails when applying for DMF permits." Due to the commercial nature of these permits and the corresponding use of these email addresses and phone numbers for business purposes, I find the Division has not met its burden to .demonstrate how disclosure of this information would "constitute an unwarranted invasion of personal privacy." Therefore, it has not met its burden to withhold the email addresses and phone numbers of commercial permit holders under Exemption ( c) . Mailing/residential addresses The Division also asserts that the residential addresses of these DMF-permitted fishermen

Jared A. Silva SPR18/1122 Page 4 August 8, 2018 may be withheld under Exemption (c). As described in my July 11th determination, residential addresses are available from other sources. Massachusetts law requires the creation of "street lists" of all persons residing in the Commonwealth. See Pottle v. School Comm. 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, §§ 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. 51, § 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, § 91 (requiring public inspection a list including the names and addresses of voters who have applied for absentee ballots); G. L. c. 51, §§ 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). The Division cites PETA in support of its position. However, due to the commercial nature of these permits and the corresponding use of these addresses for business purposes, I find the Division has not met its burden to demonstrate how disclosing these addresses constitutes "an unwarranted invasion of personal privacy." Id. at 294-95 (indicating there is a lower privacy interest in business addresses because they "typically are widely shared with others and, in this case at least, may well be exposed to scrutiny by researchers, government agencies, shippers, and possibly others"). Therefore, I find the Division has not met its burden to withhold responsive mailing/residential addresses under Exemption ( c ). 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 review the records, redact where necessary, and provide responsive records to Mr. Strahan 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. Sincerely, ~~· Rebecca S. Murray Supervisor of Records cc: Richard Maximus Strahan