Damien Powell, Esq. v. Division of Occupational Licensure (SPR 20190121)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

Feburary 1, 2019 SPR19/0121

Sheila York, Esq.

Board Counsel

Division of Professional Licensure 1000 Washington St. Suite 710 Boston, MA 02118-6100

Dear Attorney York:

I have received the petition of Damien Powell, Esq. appealing the response of the Division of Professional Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Powell requested records relating to an unredacted and complete copy of the Voluntary Surrender Agreement. The Division provided Attorney Powell with a response on November 26, 2018 citing Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Division’s response, Attorney Powell appealed the response to this office on January 17, 2019.

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, § 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, § 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, § 10(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. G. L. c. 66, § 10(b)(iv).

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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

Sheila York, Esq. SPR19/0121 Page 2 February 1, 2019

Appeal

In the Division’s November 26" response it explained that the “Board has redacted criminal docket numbers and withheld copies of those criminal convictions under the second clause of the privacy exemption because the disclosure of that data would constitute an unwarranted invasion of personal privacy not outweighed by the public's interest in disclosure of that material.” The Division states that redacted information “. . . directly pertain to the reasons underlying disciplinary action has been disclosed due to the paramount public interest in disclosure.”

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. 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

Sheila York, Esq. SPR19/0121 Page 3 February 1, 2019

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.

Attorney Powell believes the Division’s “. . . redaction and withholding of these materials was improper and should be reversed because their disclosure is not an invasion of privacy.” In his January 17" appeal, Attorney Powell says “the Division has not stated or suggested in any way that the criminal convictions are under seal or otherwise unavailable to the public.” Attorney Powell also states that the records in question are not “the subjects of disputes in active litigation.”

I find it is unclear how this information may be withheld under Exemption (c), particularly in light of the fact that the same information appears to be available from other sources. See id. (finding that the availability from other sources may lessen privacy interests). Attorney Powell indicates in his appeal that the “Voluntary Surrender Agreement itself makes clear the identified individual was convicted in Vermont of two counts of Lewd and Lascivious behavior with a Child. Under Vermont public records law, criminal offender records, including criminal convictions like these, are accessible to the public. Vt. Stat. Ann. tit. 1, § 317.”

Conclusion

Accordingly, the Division is ordered to provide a written response to Attorney Powell, made in accordance with the Public Records Law, its Access Regulations and this order 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,

4 if BALA MUnMay

it

Rebecca S. Murray Supervisor of Records

cc: Damien Powell, Esq.