Elmir Simov v. Division of Occupational Licensure (SPR 20230598)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 12, 2023 SPR23/0598 Jessica L. Ellis, Esq. Assistant General Counsel for Public Affairs Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Ellis: 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, Mr. Simov requested, “…a spreadsheet with the emails and phone numbers of all currently licensed plumbers in MA[.]” Prior Appeals This request was the subject of previous appeals. See SPR23/0295 Determination of the Supervisor of Records (February 27, 2023) and SPR23/0441 0295 Determination of the Supervisor of Records (March 17, 2023). In my previous determination, I ordered the Division to clarify whether telephone numbers and email addresses of licensees are of a personal or business nature. The Division provided a response on March 29, 2023. Unsatisfied with the response, Mr. Simov petitioned this office and this appeal, SPR23/0598, 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 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Jessica L. Ellis, Esq. SPR23/0598 Page 2 April 12, 2023 to withhold, and provide the specific reasons for such withholding, including the specific 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). 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 March 29th Response In its March 29, 2023 response, the Division cited Exemption (c) of the Public Records Law to redact information. Current Appeal In his appeal, Mr. Simov states, “[t]he data in question does not easily fit into any of the narrowly defined exceptions.” 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.

Jessica L. Ellis, Esq. SPR23/0598 Page 3 April 12, 2023 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 citing Exemption (c), the Division states, The application form does not specify if the email address or phone number to be entered is personal to the applicant or is used in the conduct of the applicant’s business. Once the information is entered, the Division has no way to distinguish between a personal phone number or email address and business phone number or email address. Because we expect that many applicants—perhaps most applicants— will enter a personal email address and phone number if they choose to voluntarily enter this information, we have determined it would be an unwarranted infringement of the privacy of applicants considered as a group. We have balanced this privacy interest against the public interest of releasing this information, and determined the privacy interest warrants withholding the requested information. Where the licensees included the telephone numbers and email addresses on an application for a license for their businesses, it is unclear how Exemption (c) applies to withhold this information from disclosure. Particularly, it is uncertain how the information constitutes intimate details of a highly personal nature, nor how disclosing the information constitutes “an unwarranted invasion of personal privacy.” Id. At 294-95. Consequently, I find the Division has not met its burden to redact the requested information under Exemption (c) of the Public Records Law. Conclusion Accordingly, the Division is ordered to provide Mr. Simov with a response to the request, provided 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. Simov may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Jessica L. Ellis, Esq. SPR23/0598 Page 4 April 12, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Elmir Simov