Randall Block v. Newton, City of - City Clerk (SPR 20210279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 19, 2021 SPR21/0279 Karyn Dean Committee Clerk City of Newton 1000 Commonwealth Avenue Newton, MA 02459 Dear Ms. Dean: I have received the petition of Randall Block appealing the response of the City of Newton (City) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2020, Mr. Block requested the following records: “Email addresses that currently receive the Mayor's periodic Updates. . .” Prior Appeals This request was the subject of previous appeals. See SPR20/2227 Determination of the Supervisor of Records (November 30, 2020); SPR20/2559 Determination of the Supervisor of Records (January 7, 2021). In my January 7, 2021 determination, I found the custodian did not meet its burden of specificity when claiming Exemption (c). Unsatisfied with the response, Mr. Block petitioned this office and this appeal, SPR21/0279, 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, § 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) (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 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

Karyn Dean Page 1 SPR21/0279 February 19, 2021 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). The City’s January 22, 2021 response In its January 22nd response, the City stated “[p]rivate email addresses usually contain personally identifiable information within the email address itself, such as a person’s first and last name, i.e. john.smith1982@gmail.com. Even if the email does not contain a first and last name it can still easily lead to information that identifies an individual.” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under 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 exemption 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 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 exemption 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

Karyn Dean Page 1 SPR21/0279 February 19, 2021 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 its January 22nd response, the City states, “… [p]rivate email addresses usually contain personally identifiable information within the email address itself, such as a person’s first and last name does not contain a first and last name it can still easily lead to information that identifies an individual. Thus, even where an email address in the database is not connected to a first and last name, the email address itself consists of personally identifiable information. See also Globe Newspaper v. Boston Retirement Bd., 388 Mass. 427 at 438 (1983)(a record that contains no personally identifiable information, but can still lead to identification of an individual, raises privacy concerns).” The City asserted that “…this information is not publically available or ascertainable. This is one of the primary concerns of any analysis of Exemption (c). Where such information is not at all available from any other source, disclosure of that information related to particular individuals is a distinct invasion of the right to privacy. Globe Media Partners, 482 Mass. at 444, citing Registrar of Motor Vehicles, 26 Mass.App.Ct. 415, 427 (1988).” Personal email addresses, which are generally not listed within any sort of directory or available by any other means of a public search, similar in many respects to unlisted phone numbers, favor a finding of non-disclosure. The public interest in disclosure of this information does not outweigh the privacy interests associated with the redacted information. I find that the City has met its burden in responding to Mr. Block’s appeal. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Randall Block