Stevan Johnson v. Department of Public Utilities - Legal Division (SPR 20181272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 5, 2018 SPRlS/1272 Carline L. Lemoine Department of Public Utilities Legal Division One South Station Boston, MA 02110 Dear Ms. Lemoine: I have received the petition of Stevan Johnson appealing the response of the Department of Public Utilities Legal Division (Division/Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Johnson requested a copy of Uber Technologies, Inc.'s (Uber) 2017 annual intrastate operating revenue report (revenue report) submitted to the Division. In its August 21, 2018 response, the Division informed Mr. Johnson that Uber' s 2017 revenue report was being withheld pursuant to G. L. c. 159AYz, § 8(e) as this statute operates through Exemption (a) of the Public Records Law. As a result of the Division's withholding of the revenue report, Mr. Johnson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. No duty to create records or answer questions In addition to his request for records, Mr. Johnson posed questions to the Division relating to background checks and services provided to individuals with disabilities. In response, the Division stated "[a]fter a reasonable search, the Department has determined that it has no records responsive to your request. Please be advised that the Department is limited to providing records and not responding to questions." Mr. Johnson is advised by this office that under the Public Records Law, the Division is not required to create a record in response to a public records request, conduct research or answer questions. See G. L. c. 66, § 6A(d ). 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 of records at the time of the request. See G. L. c. 66, § 10(a )(ii). 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

Carline L. Lemoine SPR18/1272 Page 2 September 5, 2018 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) (written response must "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 ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (c ustodian has the burden of establishing the applicability of an exemption). Exemption (a) The Division's August 21st response indicates that the responsive revenue report pertaining to Uber it received is exempt from public disclosure pursuant to G. L. c. 159AYz, § 8(e) regarding transportation network companies (TNCs), as it operates through Exemption (a) of the Public Records Law. 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

Carline L. Lemoine SPR18/1272 Page 3 September 5, 2018 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. G. L. c. 159A~, § 8(e) This statute provides in relevant part: Any record furnished to the Division of Public Utilities (Division) or other state agency by a transportation network company pursuant to this chapter including, but not limited to the roster of permitted transportation network drivers, shall not be considered a public record as defined in clause Twenty-sixth of section 7 of chapter 4 or chapter 66. G. L. c. 159AYz, § 8(e). The statute indicates that any record furnished to the Division by a TNC pursuant to chapter 159AYz of the General Laws is restricted from public disclosure. Under this chapter, the Division has authority to promulgate regulations necessary for the implementation, administration and enforcement of this chapter." See G. L. c. 159Yz, § 11. The Division's regulations require TNCs to report certain information on an annual basis, including the TNC's intrastate operating revenues. The regulation pertinent to a TNC's requirement to furnish the Division with an intrastate operating revenue report states: By March 31st of each calendar year, a TNC shall report its intrastate operating revenues for the previous calendar year. If a TNC fails to report its intrastate operating revenues to the Division by March 31st of any calendar year, the Division may estimate a TNC's intrastate operating revenues. A TNC's intrastate operating revenue shall include but not be limited to any Rider picked up at the following: 1. Airport 2. Train station; 3. Bus terminal; or 4. Any other kind of port. 220 C.M.R. 274.12(2)(b) (Reporting Requirements). The Division explained that where the revenue report is a record that is provided to it pursuant to 220 C.M.R. 274.12(2)(b), promulgated under the authority of G. L. c. 159\/z, § 11, the record is not a public record. With its August 21st response and further discussions with this office, the Division has demonstrated that the requested revenue report is a record that is furnished to the Division as required by the Division's regulations. As such, the Division has shown that it has met the criteria established by the Legislature which has defined these records as confidential. G. L. c. 159AYz, § 8(e); 220 C.M.R. 274.12(2)(b).

Carline L. Lemoine SPR18/1272 Page 4 September 5, 2018 Conclusion Accordingly, I find that the Department has met its burden of supporting its Exemption (a) claim to withhold the responsive record from public disclosure. Consequently, this administrative appeal is closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stevan Johnson