Edward P. Sinni, Jr. v. Concord, Town of - Planning Department (SPR 20201291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13, 2020 SPR20/1291 Marcia Rasmussen Director of Planning & Land Management Town of Concord 141 Keyes Road Concord, MA 01742 Dear Ms. Rasmussen: I have received the petition of Edward Sinni appealing the response of the Town of Concord (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sinni requested “the email addresses which the ZBA and Planning Board memberships use to conduct their respective Town of Concord board business.” The Town responded on July 27, 2020, asserting that Mr. Sinni’s request is not a request for public records, and citing the privacy clause of Exemption (c). Unsatisfied with the Town’s response, Mr. Sinni petitioned this office and this appeal, SPR20/1291, was opened as a result. The Town’s July 27, 2020 Response In its July 27th response, the Town asserts that “[a] request for ‘email addresses’ is not a request for ‘public records’, i.e., ‘books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by a governmental entity unless such materials or data fall within one or more of the exemptions found within G. L. c. 4, § 7(26) or other legally applicable privileges.’” The Town states that “[i]t is not clear what record [Mr. Sinni is] specifically requesting” (emphasis in original). Please be advised “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). Where Mr. Sinni has specifically requested the email addresses used to conduct Town business, it is unclear how these responsive email addresses are not public records under the statutory definition. 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

Marcia Rasmussen SPR20/1291 Page 2 August 13, 2020 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 of Exemption (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. Based on the Town’s response, I find it has not met its burden to show that the requested email addresses are exempt from disclosure pursuant to the privacy clause of Exemption (c). Where the request seeks the email addresses used for Town business, it is unclear how an individual maintains a privacy interest in that address.

Marcia Rasmussen SPR20/1291 Page 3 August 13, 2020 Conclusion Accordingly, the Town is ordered to provide Mr. Sinni with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Edward Sinni