Elmir Simov v. Division of Occupational Licensure (SPR 20230295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2023 SPR23/0295 Alessandra Hinson Office Support Specialist Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118-6100 Dear Ms. Hinson: I have received the petition of Elmir Simov appealing the response of the Division of Occupational Licensure (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2023, Ms. Simov requested, “…a spreadsheet with the emails and phone numbers of all currently licensed plumbers in MA[.]” The Division provided responses on February 13, 2023 and February 14, 2023. Unsatisfied with the responses, Ms. Simov petitioned this office and this appeal, SPR23/0295, 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, § l0A(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

Alessandra Hinson SPR23/0295 Page 2 February 27, 2023 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. The Division’s February Responses In its February 13, 2023 response, the Division stated, “[e]mail and phone numbers are not required for licensure thus they are not included on our lists.” On February 14, 2023, the Division provided a list of addresses and stated, “I do not have the phone numbers or email addresses to give you all I have is a list of the license plumbers in Massachusetts, Plumbing licenses are a matter of public record in Massachusetts, however phone numbers and email addresses are not.” Current appeal In her appeal, Ms. Simov states, “…Emails and numbers of businesses and licensed entities and individuals do not easily fit into the 9 exceptions under the Freedom of Information Act and so they should be public and provided under this request.” In light of Ms. Simov’s claim, it is unclear if the Division possesses additional records that may be responsive to the request. The Division must clarify if it possesses the emails and numbers of the businesses or licensed entities. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that responsive records exist, I find the Division must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Division is ordered to provide Ms. Simov with a response to the request, provided 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, Manza Arthur Supervisor of Records cc: Elmir Simov