Jeffrey Cohen v. Secretary of the Commonwealth - Elections Division (SPR 20232398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2023 SPR23/2398 Valerie J. Connolly Records Access Officer Secretary of the Commonwealth Elections Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Jeff Cohen appealing the response of the Office of the Secretary of the Commonwealth, Elections Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 18, 2023, Mr. Cohen requested “a current copy of the state-wide Massachusetts voter registrations.” The Division responded on September 1, 2023, citing G. L. c. 51, § 47C for denying the request, and advising Mr. Cohen to submit his request directly to local election officials. Unsatisfied with the Division’s response, Mr. Cohen 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 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. Att’y 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 J. Connolly SPR23/2398 Page 2 October 24, 2023 Current Appeal In his appeal petition, Mr. Cohen contends that he “do[es] not believe the Massachusetts law that [the Division] referenced in [its] response, complies with the 1993 National Voter Registration Act. This federal law explicit[ly] states that statewide voter rolls must be maintained by [the] office, but they also need to be ‘made available for public inspection.’” The Division’s September 1st Response In its September 1, 2023 response, the Division cites G. L. c. 51, § 47C for withholding responsive records. See G. L. c. 4, § 7(26)(a). 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.” 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. G. L. c. 51, § 47C In its response, the Division cites G. L. c. 51, § 47C, which provides in pertinent part: Subject to appropriation, the state secretary shall maintain a central registry of voters which shall contain, if provided by the registrars, the names, addresses and effective dates of registration of all registered voters in the commonwealth and

Valerie J. Connolly SPR23/2398 Page 3 October 24, 2023 which shall contain the name, date of birth, occupation, veteran status, nationality, if not a citizen of the United States, for street list purposes only, and residence on January first in the preceding year and in the current year, of every person three years of age or older in the commonwealth, and shall adopt regulations governing the operation of said central registry. The names and addresses contained in said central registry shall not be a matter of public record; provided however, that they shall be available to state party committees, statewide candidate committees, state ballot question committees, the jury commissioner, adjutant general and any other individual, agency or entity that the state secretary shall designate by regulation consistent with the purposes of this section, at a fair and reasonable cost not to exceed the cost of printing or preparing computer readable documents. G. L. c. 51, § 47C. In its September 1st response, under the statute cited above, the Division explains the following: The information [Mr. Cohen has] requested is maintained in the state voter database. Under section 47C of chapter 51 of the General Laws, such information contained in the state voter database is not a public record available from this office. As such, this office is unable to provide [Mr. Cohen] with the records [he has] requested. Where the records sought by Mr. Cohen appear to be the type contemplated under G. L. c. 51, § 47C, I find that the Division has met its burden to withhold the responsive records pursuant to Exemption (a) of the Public Records Law, and the statute cited above. See G. L. c. 4, § 7(26)(a). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Cohen is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Cohen Debra O’Malley, Esq. Michelle Tassinari, Esq.