Richard Nurmi v. Division of Occupational Licensure (SPR 20222602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 30, 2022 SPR22/2602; SPR22/2603 Jean McCarthy Records Access Officer Division of Occupational Licensure Office of Public Safety and Inspections 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of Richard Nurmi appealing the response of the Office of Public Safety and Inspections (Office/OPSI) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 1, 2022 and September 22, 2022, Mr. Nurmi requested records relating to elevator entrapments in 1, 2, 3 and 4 Longfellow Place, Boston, on specific dates. The Office responded on October 28, 2022. Unsatisfied with the Office’s response, Mr. Nurmi petitioned this office, and appeals, SPR22/2602 and SPR22/2603, were 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 agency or municipality 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

Jean McCarthy SPR22/2602; SPR22/2603 Page 2 November 30, 2022 The Office’s October 28th response In its October 28, 2022 response, the Office stated that it was redacting the records under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Exemption (c) Exemption (c) permits the withholding of: 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. 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 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 response, the Office stated that “OPSI has redacted victim witness information and telephone numbers pursuant to the second (privacy) clause of G.L. c. 4, 7(26)(c), because its disclosure would constitute an unwarranted invasion of personal privacy not outweighed by the public’s interest in disclosure of the material.”

Jean McCarthy SPR22/2602; SPR22/2603 Page 3 November 30, 2022 Based on the Office’s response, it is unclear what victim witness information was redacted from the records, nor how the information constitutes intimate details of a highly personal nature. Also, it is uncertain how disclosure would result in personal embarrassment to an individual of normal sensibilities and whether this information is available from other sources. PETA, 477 Mass. At 292. Further, the Office did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. The Office must clarify these matters. I find that the Office has not met its burden to redact the requested records under Exemption (c). Conclusion Accordingly, the Office is ordered to provide Mr. Nurmi with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Mr. Nurmi may appeal the substantive nature of the Office’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Richard Nurmi