Nina Mazzarelli v. Boston, City of - Public Records (SPR 20200175)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 12, 2020 SPR20/0175 Shawn Williams, Esq. Records Access Officer City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Nina Mazzarelli appealing the response of the City of Boston (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Mazzarelli requested "email and phone data for registered landlords and property managers in the City of Boston." The City provided Ms. Mazzarelli with a response on January 9, 2020, indicating that it possesses the responsive information, but it withholding it pursuant to the privacy clause of Exemption (c) of the Public Records Law. Unsatisfied with the Town's response, Ms. Mazzarelli petitioned this office and this appeal, SPR 20/0175, 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, § 1O A( 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 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

Shawn Williams, Esq. SPR20/0175 Page 2 February 12, 2020 Appeal In its January 9111 response, the City indicates that it is withholding responsive records pursuant to the privacy clause of Exemption (c). 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). Second clause ofE xemption (c) - privacy 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 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. In her appeal petition, Ms. Mazzarelli claims that the information she requests "pertains to businesses/business identities, and is available via other sources; as such, the data request does

Shawn Williams, Esq. SPR20/0175 Page 3 February 12, 2020 not constitute an 'unwarranted invasion of personal privacy."' Supporting her claim that the information is available from other sources, Ms. Mazzarelli alleges that "[p]roperty contact information is required to be posted publicly pursuant to the Massachusetts Code of Public Health," citing G. L. c. 143, § 3S. Ms. Mazzarelli further alleges that "the information being requested pertains to business identities," specifically of landlords and companies providing property management services to landlords. In its January 9th response, the City states that the responsive telephone numbers and email addresses "are omitted from the records provided to you as they consist of intimate details of a highly personal nature." The City further states that "[t]his information is not readily available from other public sources and the public interest in disclosure does not outweigh the privacy interest." In light of Ms. Mazzarelli's petition, it is unclear whether the phone numbers and email addresses being withheld are personal in nature. It is further unclear whether the requested information is available from other sources. The City must clarify these matters. Accordingly, I find the City has not met its burden to withhold the requested information pursuant to the privacy clause of Exemption ( c ). Conclusion Given that the City did not meet its burden to explain how an exemption applies to withhold the information described above, the City is ordered to provide Ms. Mazzarelli with a supplemental response 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Nina Mazzarelli