Joshua Miller v. Department of Revenue (SPR 20190913)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 21, 2019 SPR19/0913 Roger H. Randall, Esq. Tax Counsel Litigation Bureau Department of Revenue ih 100 Cambridge Street, floor Boston, MA 02114-2582 Dear Attorney Randall: I have received the petition of Joshua Miller of the Boston Globe appealing the response of the Department of Revenue (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Miller requested "any public DOR documents associated with ... "three identified individuals, as well as three identified VINs. The Department denied his request claiming the responsive records are exempt from disclosure pursuant to G. L. c. 62C, § 21(a) as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). 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 1s 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); 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. 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

Roger H. Randall, Esq. SPR19/0913 Page 2 May 21, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal In its May 7, 2019 response, the Department indicates that "the records ... are not public records" and explains that "[t]axpayer-specific records and information, with exceptions not applicable here, shall not be disclosed" under the claimed statute. The Department asserts that "[b] ecause there is an express prohibition on disclosure, such records and information are defined as not public records" under the Public Records Law. The Department additionally indicates that it "do[e s] not keep records organized or searchable by Vehicle Identification Number.)" In his petition for appeal, Mr. Miller indicates his belief that "some documents, such as a redacted MVU-26, aren't prohibited from release." On May 9, 2019, in response to Mr. Miller's petition, the Department indicates that it "does not receive a copy of any completed form MVU- 26 that a car-buyer or a car-seller submits to the Registry of Motor Vehicles." The Department states that "even if the Department received a copy of such a form, [the Department] do[es] not believe that there is any statutory exception that would allow [it] to disclose this particular taxpayer-specific document to a person other than the taxpayer. The prohibition against disclosure would apply." The Department cites to G. L. c. 62C, § 2l(a) and Exemption (a). In a May 14, 2019 response, the Department indicates that "[i]fthe [Department] were to have any documents associated with particular persons, then those would be 'documents filed with the Commissioner' ... and are therefore not public records." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't ofEnvtl Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985).

Roger H. Randall, Esq. SPR19/0913 Page 3 May 21, 2019 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 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. 62C, § 21(a) provides in pertinent part: The disclosure by the commissioner, or by any deputy, assistant, clerk or assessor, or other employee of the commonwealth or of any city or town therein, to any person but the taxpayer or his representative, of any information contained in or set forth by any return or document filed with the commissioner, except in proceedings or other activities to determine or collect the tax or for the purpose of criminal prosecution under this chapter, chapters sixty A, sixty-two to sixty-five C, inclusive, section ten of chapter one hundred and twenty-one A and section twenty-one of chapter one hundred and thirty-eight, is prohibited. G. L. c. 62C, § 21(a). Burden ofs pecificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1 O(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Despite the Department's responses, it remains unclear whether the Department possesses responsive records. See G. L. c. 66, § 1 O(b )(iv); 950 C.M.R. 32.06(3)(c )(4 ) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). The Department must identify what records it has in its possession, custody or control that are responsive to Mr. Miller's request. Although the Department indicates any records it may have are exempt from disclosure pursuant to G. L. c. 62C, § 21(a), it is unclear how the statute applies to withhold the requested records. Specifically, it is unclear whether the responsive records fall within the meaning of the claimed statute. The Department must provide a detailed response to specifically explain how the exemptions apply to withhold the requested records in compliance with the Public Records Law.

Roger H. Randall, Esq. SPR19/0913 Page4 May 21, 2019 Order Accordingly, the Department is ordered to provide Mr. Miller with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Joshua Miller