Todd Wallack v. Lincoln, Town of - Town Clerk (SPR 20210437)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2021 SPR21/0437 Valerie Fox Town Clerk Town of Lincoln 16 Lincoln Road, 1st Floor Lincoln, MA 01773 Dear Ms. Fox: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Town of Lincoln (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 29, 2020, Mr. Wallack requested, “[a]n electronic copy of the municipality's public list of registered voters, also known as the voter file.” Prior appeal The requested records were the subject of a prior appeal. See SPR21/0247 Determination of the Supervisor of Records (February 17, 2021). The Town responded on February 19, 2021. Unsatisfied with the response, Mr. Wallack appealed and SPR21/0437 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); 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

Valerie Fox SPR21/0437 Page 2 March 8, 2021 The Town’s February 19th Response In its February 19th response, the Town stated that they provided the report with redactions pursuant to Exemption (c). 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 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). 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 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 February 19th response, the Town explains, “… a copy of the report [was] provided but deleted [was] the day and month for each voter and provided the year only and the voter record number as the date of birth can be discerned therefrom.” The Town further asserted, “… personal information regarding a particular individual may be withheld from disclosure pursuant … of which may constitute an unwarranted invasion of personal privacy.” The Town cited Boston Globe Media Partners. LLC v. Department of Public Health (DPH), 482 Mass. at 427 (2019) in support of a greater privacy interest in ‘compilations’ of personal data than individual pieces of data.

Valerie Fox SPR21/0437 Page 3 March 8, 2021 Current appeal In his appeal, Mr. Wallack states, “… the Secretary of Commonwealth recently sent clerks a reminder that the data is public, including dates of birth.” In the DPH case, the Supreme Judicial Court identified four factors to review in determining a privacy interest: (1) the extent to which multiple indices could be compared to reveal private information, (2) the availability from other sources of the information in the requested indices, (3) the risk from disclosure of identity theft or fraud, and (4) the extent to which disclosure could result in unwanted intrusions. Id. at 442. The Town has provided no analysis nor any facts to support the application of the DPH factors to withhold the requested records. It is also unclear how dates of birth are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources, such as a birth certificate. See PETA, 477 Mass. at 292. Also, the Town did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. I find that the Town has not met its burden to withhold the responsive information. Order Accordingly, the Town is ordered to provide Mr. Wallack with a response to the request 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: Todd Wallack