Michael D. O'Farrell v. Fitchburg Treasurer and Collector (SPR 20212132)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2021 SPR21/2132 Anne M. Cervantes Treasurer and Collector City of Fitchburg 718 Main Street, Suite 103 Fitchburg, MA 01420 Dear Ms. Cervantes: I have received the petition of Michael O’Farrell appealing the response of the City of Fitchburg (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 4, 2021, Mr. O’Farrell requested the following: [N]ame (or names) and property address(es) of record for all residents of the City of Fitchburg and non-residents engaged in business or commercial activities within the City of Fitchburg with unpaid real estate tax, unpaid personal property tax, unpaid motor vehicle excise tax, unpaid water/sewer bills as of August 4, 2021 . . . together with the total amount unpaid and due the City of Fitchburg. . . . Dollar total of the above indicated unpaid accounts (by individual account) as of December 31, 2015, i.e., a copy of actual account printout(s). The City responded on August 17, 2021, and again on August 23, 2021 providing numerous responsive records and claiming to withhold others pursuant to Exemption (a) of the Public Records Law and 18 U.S.C. § 2721. Unsatisfied with the City’s response, Mr. O’Farrell appealed, and this case 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 city of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Anne M. Cervantes SPR21/2132 Page 2 September 3, 2021 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. O’Farrell contends that a “distinction exists between and among ‘State motor vehicle records’ (which were not the subject of Public Records request) and delinquent Excise tax records (which are the subject of Public Records request).” The City’s August 17th and August 23rd Response In its August 17, 2021 response, the City states that the requests for “[u]npaid Motor Vehicle Excise tax including vehicle owner name and address [as of] August 2, 2021 [and December 31, 2015] [are] denied pursuant to MGL chapter 4, section 7, clause twenty-sixth (exemption a).” In its August 23, 2021 response, the City cites 18 U.S.C. § 2721 as the applicable statute operating under Exemption (a) of the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

Anne M. Cervantes SPR21/2132 Page 3 September 3, 2021 The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Disclosure of certain personal information contained in state motor vehicle records is restricted by the Driver Privacy Protection Act (Act). The Act provides in pertinent part: (a) In general.--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: (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or (2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual's driver's license or affect the administration of organ donation initiatives in the States. 18 U.S.C. § 2721(a). “Personal information,” as used in the above statute, is defined as follows: “personal information” means information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status. 18 U.S.C. § 2725(3). In its August 23, 2021 response, the City contends “that the Drivers Privacy Protection Act, 18 U.S.C. section 2721, prohibits disclosure of personal information received from the Registry of Motor Vehicles, except for certain permissible uses. [The City does not] believe Mr. O’Farrell’s request falls under any of those permissible uses.” The City goes on to explain that “[a]ll of the information the city has on excise taxes comes from the Registry of Motor Vehicles through the city’s deputy collector.”

Anne M. Cervantes SPR21/2132 Page 4 September 3, 2021 The Superior Court addressed the application of the Drivers Privacy Protection Act (DPPA) to municipalities in the recent case of Somerville v. Murray. See Memorandum of Decision and Order Re: Plaintiff’s Motion for Judgement on the Pleadings and Defendant’s Cross-Motion for Judgement on the Pleadings Middlesex, City of Somerville v. Rebecca Murray, as Supervisor of Records, Sup. No. 15 81 CV 04911, at 2-3 (December 4, 2019). In Somerville, the Superior Court found that the DPPA “is specific as to what entities it applies to and as to what information is protected.” Id. at 3. In that case, a requestor sought “a list of residential parking permits, including . . . the permit number, issue date, expiration date, vehicle model/make/year, license plate number, first name, last name, address and zip code.” Id. at 2. The court found “that given the specific language in the DPPA, that statute specifically does not apply to municipalities and that it does not specifically or by necessary implication exempt from disclosure the data being sought.” Id. at 3. The issues presented in this appeal appear analogous to those addressed in Somerville. Here, in place of parking permits, Mr. O’Farrell seeks the names and addresses of residents with unpaid motor vehicle excise tax. Accordingly, the responsive records are not exempt pursuant to Exemption (a) and the DPPA. Therefore, I find the City has not met its burden to withhold the responsive records pursuant to Exemption (a). Conclusion Accordingly, the City is ordered to provide Mr. O’Farrell with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael O’Farrell