Andrew Spearing v. Littleton Electric Light and Water Departments (SPR 20192240)

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

Rebecca S, Murray Supervisor of Records

November 19, 2019 SPR19/2240

Nick Lawler

General Manager

Littleton Electric Light and Water Departments 39 Ayer Road

Littleton, MA 01460

Dear Mr. Lawler:

I have received the petition of Andrew Spearing appealing the response of the Littleton Electric Light and Water Departments (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Spearing requested the following records:

“1, A list of all RESIDENTIAL properties in town that have delinquent water billing accounts, For each record, please indicate at least: a. The owner’s full name b. Property address c. Amount of money owed. 2. A separate list of all RESIDENTIAL properties whose water meters show ZERO consumption for the last THREE MONTHS OR MORE. For each record, please indicate at least: a. The owner’s full name b. Property address c. Months with zero consumption (or at least date of last consumption). 3. Ifthe town shuts off water for delinquent payments and tracks those shutoffs, please include a list of all payment-related, residential water shutoffs for the last 3 months. .

” .

Mr. Spearing stated that he preferred the records provided in an Excel format. The Department responded on November 5, 2019, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G, L.c. 4, § 7(26)(c). Unsatisfied with the Department’s response, Mr. Spearing petitioned this office and this appeal, SPR19/2240, was opened as a result. While this appeal was pending, the Department provided a supplemental response dated November 8, 2019.

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

Nick Lawler SPR19/2240 Page 2 November 19, 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.

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.

The Department’s November 5" response

In its November 5, 2019 response, the Department states that the responsive records do not exist in the requested format. The Department indicated that “. . . to the extent that [it] does have information requested regarding amounts owed by, and usage of specifically named users, or delinquent accounts, that information is exempt from the definition of ‘public records’ under M.G.L. c. 4, s. 7(26)(c), the ‘privacy’ exemption, as you are seeking ‘materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.[’]”

The Department’s November 8 supplemental response

In his appeal petition, Mr. Spearing states that “Secretary of State’s Guide to the Public Records Law, .. . Sec. Gavin [sic] makes clear that names and addresses of public utility customers do not fall under Exemption C .. .” In its November 8, 2019 supplemental response, the Department contends that Exemption (c) is applicable to withhold the responsive records, because “... Mr. Spearing has not asked for the names and addresses of [the Department’s] customers. Mr. Spearing has requested the names and addresses of customers with delinquent account balances, and the amounts that are overdue, as well as of customers with zero usage. This information is not readily available from other public sources.” The Department states that “fiJn support of this conclusion, [it] notes that Massachusetts regulations (adopted pursuant to G.L. c. 93A) prohibit communication of the existence of debt to third parties, thereby underscoring an individual’s privacy interests in such information. See e.g., 940 C.M.R. 7.06.”

Nick Lawler — SPR19/2240 Page 3 November 19, 2019

The Department further states that “. . . providing the names and addresses of customers with zero usage, which would indicate the properties are unoccupied, implicates the owner’s privacy interests and could expose those properties to criminal activity. Accordingly, [the Department’s] customers undoubtedly have an expectation that specific information regarding how much water they use or do not use, and whether they have overdue balances, would remain private.” The Department adds that “‘. . . there is no paramount public interest in the disclosure of the information sought by Mr. Spearing, especially where as here, he appears to be seeking this . information in connection with some type of commercial purpose.”

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). 2"4 clause of Exemption (c) — privacy

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 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

Nick Lawler SPR19/2240 Page 4 November 19, 2019

privacy, the private interest in preventing disclosure must yield. PETA, 477 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.

Based on the Department’s response, I find it has not met its burden to withhold responsive records under Exemption (c). Although the Department claims that “[t]his information is not readily available from other public sources[,]” I find the Department has not demonstrated how the information requested constitutes an intimate detail of a highly personal nature nor how disclosure of the information would result in personal embarrassment to an individual of normal sensibilities. PETA, 477 Mass. at 292. As a result, the Department has not established whether there is a privacy interest that is not substantially outweighed by a public interest. See id. at 291-92; see also Attorney Gen. v. Collector of Lynn, (holding that although disclosure of a list of tax delinquents would certaihly result in personal embarrassment, disclosure did not publicize “‘intimate details’ of a ‘highly personal’ nature . . .” because, an owner “, . . does not have the same expectation of privacy concerning his legal obligation as he has in his private financial affairs.” Collector of Lynn, 377 Mass. at 157.

Requested format

In his request, Mr. Spearing indicated that “. . . it would be preferable to receive this information in excel format but if that is not possible, you can email it to me in another electronic format.” In its November 5" response, the Department indicated that it “. . . does not have the records [Mr. Spearing] seek[s] in the format requested.” In his appeal petition, Mr. Spearing states the following “[a]s for the issue of not having records in the requested format, the request does not specify any particular format. Excel is preferred, but any format will do.” Where Mr. Spearing has indicated that the records can be provided in any format, I find the Department may provide the records in the format that is available.

Conclusion

Accordingly, the Department is ordered to provide Mr. Spearing with a response to the request, provided in a manner consistent with this order, the Public Records Law and its ° Regulations within ten (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.

Lloro

Rebecca S. tlbetca! Supervisor of Records

ce: Andrew Spearing