Collin Dias v. Massachusetts Department of Transportation - Office of the General Counsel (SPR 20200477)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records March 16, 2020 SPR20/0477 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transp01iation 10 Park Plaza Suite 3 910 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Colin Dias appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 4, 2020, Mr. Dias requested "MassDOT public records relating to .... [a] [named] City Councilor of Fall River." 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, § lO(b)(iv) (written response must "identify any records, categories of records or p01iions 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 ... "); 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). MassDOT's December 6th response In its December 61h response, MassDOT denied access to responsive records and One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

William J. Doyle, Esq. SPR20/0477 Page 2 March 16, 2020 referenced the federal Drivers Privacy Protection Act, which states in part: "a state department of motor vehicles, and any officer, employee or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity, personal information about any individual obtained by the department in connection with a motor vehicle record ... personal information includes the individual's photograph, social security number, driver identification number, name, address ... telephone number, and medical or disability information." 18 U.S. Code§ 2721. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1O (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. See also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemption are narrowly construed and are not blanket in nature. The Department must produce any non exempt, segregable portions of the public records. G. L. c. 66, § 1O (a). I find that MassDOT has not met its burden of specificity in withholding portions of the responsive records. It is also unclear why the MassDOT cannot redact where necessary to preserve confidentiality and provide the remaining portions of the record. See Antell, 52 Mass. App. Ct. at 248. Conclusion Accordingly, MassDOT is ordered to provide Mr. Dias with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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, Rebecca S. Murray Supervisor of Records cc: Colin Dias