Matthew H. Greene v. Division of Occupational Licensure (SPR 20181889)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2018 SPRlS/1889 Araceli Avila Ging Public Records Coordinator Division of Professional Lic ensure 1000 Washington Street Boston, MA 02118 Dear Ms. Avila Ging: I have received the petition of Matthew H. Greene, Esq. of Boyle Shaughnessy Law, P.C. appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Greene requested a copy of disciplinary records concerning an identified licensed real estate appraiser. On November 1, 2018, the Division provided records responsive to the request. In your November 1st response you state, "[p] lease note that certain portions of this production have been redacted for the reasons indicated in the following notions: 'Redacted -privacy' pertains to personal home and email addresses, privacy exemption and highly personal information and cell phone numbers, withheld under M.G.L. c. 4, § 7, cl.26 (c)." As a result of the redactions and lack of specificity in claiming an exemption, Attorney Greene petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the requestor In his petition to the Supervisor, Attorney Greene indicates, "[t]his office has been retained to defend [a n identified person] in a divorce-related matter which involves property valuation. And much like the underlying facts surrounding the [identified appraiser's] disciplinary action, the [identified appraiser] has been retained to conduct an appraisal and to testify about his findings; trial is scheduled to begin on December 12, 2018." Attorney Greene asks the Supervisor to order the Division to provide him with un redacted records because the file is relevant to the active court matter in Worcester County Superior Court. It is important for Attorney Greene to understand that his interest in obtaining the records in un-redacted format due to active litigation does not afford him any greater right 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

Araceli Avila Ging SPR18/1889 Page 2 December 18, 2018 access to the requested records under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Greene's status as an attorney seeking un-redacted records for active litigation will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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, § 1O (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) (custodian has the burden of establishing the applicability of an exemption). Exemption (c)-second clause (privacy) Exemption ( c) applies to: 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). The Division asserted that the redactions to the records pertain to privacy issues; therefore, this determination will only analysis the second clause of Exemption (c). 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.

Araceli Avila Ging SPR18/1889 Page 3 December 18, 2018 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. The Division's November 1st email response that accompanied the redacted records did not provide the specificity required in claiming exemptions under the Public Records Law. The Division has not detailed how the redacted information in the records rises to the level of protection under the second clause of ( c) as "intimate details of a highly personal matter." Nor, has the Division applied the balancing test in PETA detailing whether disclosure would result in personal embarrassment to an individual of normal sensibilities; whether the materials sought contain intimate details of a highly personal nature; and whether the same information is available from other sources. See PETA, 477 Mass. at 292. Therefore, I find the Division has not met its burden of specificity in withholding the redacted information from the records provided to Attorney Greene under the second clause of Exemption (c). Burden ofs pecificity in responding; claiming exemptions Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Division did not meet its burden of demonstrating how portions of the redacted records are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Upon review of the redacted records provided to Attorney Greene it is unclear whether more information than just personal home address, email address and cell phone numbers have been redacted from the records. I find that the Division must provide a detailed response or index of the records to account for the redactions to each of the records and the corresponding

Araceli Avila Ging SPR18/1889 Page 4 December 18, 2018 exemption in the Public Records Law that the Division claims supports each of the redactions. See 950 C.M.R. 32.08(5)(a)-(c). Conclusion I find that the Division has not met its burden of specificity in redacting content from the responsive records. Accordingly, the Division is ordered to provide Attorney Greene with a 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Matthew H. Greene, Esq.