Nicole M. Avitabile, Esq. v. Somerville, City of - City Solicitor (SPR 20191899)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 1, 2019 SPR19/1899 David Shapiro, Esq. City of Somerville 93 Highland A venue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of Nicole Avitabile, Esq. of Rawson, Merrigan & Litner, LLP appealing the 1;esponse of the City of Somerville (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 6, 2019, Attorney Avitabile requested "all police reports involving motor vehicle accidents in your possession, custody, or control, from 8/26/2019 to present ..." The City responded on September 6, 2019, providing responsive records in its possession. The City redacted portions of the records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the City's response, Attorney Avitabile petitioned this office and this appeal, SPR19/1899, 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, § 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 v\'.ithheld or redacted pmiion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a 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

David Shapiro, Esq. SPR19/1899 Page 2 October 1, 2019 custodian must provide the responsive records. The City's September 61 response " In its September 6, 2019 response, the City indicates that it redacted driver's license numbers and individual addresses pursuant to Exemptions (a) and (c). 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 goverm11ental 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 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. Under Exemption (a), the City indicates that it redacted p01iions pursuant to the Driver Privacy Protection Act (DPPA), 18 U.S.C. s. 2000 et esq. The City asserts that" ... disclosure of the license and address would be the equivalent of releasing the same information protected from disclosure by the DPP A. Courts have held that the DPP A protects the address as personal information when listed in a police accident repo1i. See e.g., Pavone v. law Offices ofA nthony Macici, Ltd. 118 F. Supp. 3d 1004 (ND Illinois 2015). There, the court held that generally the DPP A protects such information obtained from a motor vehicle record, and that it is plausible that such information may have been recorded by police from a driver license which is a motor vehicle record under federal law." The City further states that " ... even assuming that the DPP A does not expressly prohibit disclosure, the 'necessary implications' of the Act are that the information in the possession of the [City] that relates to drivers are exempt from disclosure under the public records law .... Turning over personal information of drivers is exactly what

David Shapiro, Esq. SPR19/1899 Page3 October 1, 2019 was intended to be exempt from disclosure in response to a public record request." The City also provided an Attorney General's opinion of the state of Indiana to suppmi its position. Where the DPP A applies to permit non-disclosure of information "obtained from the Massachusetts Registry of Motor Vehicles[,]" I find that the withheld addresses do not fall under the DPP A, as the information is not directly provided by the Registry of Motor Vehicles as required in the DPP A. See G. L. c. 4, § (26)(a); 18 U.S.C. § 2721; see also Atlas Transit v. Korte, 21 WI App. 286 (2001). Accordingly, I find the City may not withhold the addresses under the DPPA, as it operates through Exemption (a). 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, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature arid 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, govermnent 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 29. The

David Shapiro, Esq. SPR19/1899 Page4 October 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. Under Exemption (c), the City states that "[h]ere, as the license number and address contained in a motor vehicle record constitutes 'personal information' in the context of applicable federal law, address information obtained by the [City] during an accident and associated with the use of motor vehicle, is subject to the same privacy concerns which federal law addresses." The City contends that" ... the public interest in disclosing the address of an individual in a motor vehicle accident is not readily apparent, where if not for the accident, such information would not be a part of a public record of the city necessarily. See SPR16/1214 (d iscussing exemption ( c) in connection with a vehicle crash prosecution)." · Further, the City contends that" ... the public interest in disclosing the address of an individual in a motor vehicle accident is not readily apparent, where if not for the accident, such information would not be a part of a public record of the city necessarily." I find the City has not demonstrated that the addresses are intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has the City addressed the availability of such information from other sources. See PETA, 477 Mass. at 292. In her appeal petition, Attorney Avitabile states that" ... it.is my position that Somerville Police Department must actually show the redaction, and not just leave the information blank. It is important that the requester knows what information is being redacted." Based on a review of the records that were provided, it is unclear which information was redacted from the responsive records or was left blank. The City must indicate whether it can provide redacted records that can assist the requestor in delineating both. Conclusion Accordingly, the City is ordered to provide Attorney Avitabile 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, ~a~ Supervisor of Records cc: Nicole Avitabile, Esq.