Todd Wallack v. Massachusetts Department of Transportation - Registry of Motor Vehicles (SPR 20232915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2023 SPR23/2912; SPR23/2915 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: I have received the petitions of Todd Wallack, of WBUR, appealing the responses of the Massachusetts Department of Transportation (MassDOT) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 14, 2023, Mr. Wallack requested the following records: SPR23/2912 ... a copy of the driving records for [four identified individuals]. SPR23/2915 [1.] List of all the active vanity license plates in Massachusetts, including the license plate number and the type of plate[;] [2.] List of all the vanity license plates rejected in Massachusetts in the past five years, including the license plate number and the type of plate[;] [3.] Any list or documents describing vanity license plate numbers that are prohibited from being approved[.] MassDOT responded on December 1, 2023. Unsatisfied with MassDOT’s response, Mr. Wallack petitioned this office and these appeals, SPR23/2912 and SPR23/2915, were opened as a result. 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

William J. Doyle, Esq. SPR23/2912; SPR23/2915 Page 2 December 18, 2023 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. MassDOT’s December 1st Response In its December 1, 2023 response to SPR23/2912, MassDOT withheld the requested records, in their entirety, pursuant to Exemption (a) of the Public Records Law. With regard to SPR23/2915, MassDOT produced some of the records responsive to the request, and also cited Exemption (a) of the Public Records Law to withhold the plate number. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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.”

William J. Doyle, Esq. SPR23/2912; SPR23/2915 Page 3 December 18, 2023 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. In its response, MassDOT stated: Prior to July 1, 2023, redacted individual driving records and plate number were released as public records. On July 1, 2023, however, Chapter 81 of the Acts of 2022, the Work and Family Mobility Act (“WFMA”), became effective. The WFMA provides that any ‘information provided by or relating to the holder of a Massachusetts license issued under section 8 of said chapter 90’ shall ‘neither be a public record nor be disclosed by the registrar, except as authorized by regulations promulgated by the attorney general. The individual driving record you have requested comprises information…relating to the holder of a Massachusetts license issued under section 8 of said chapter 90,’ and is therefore presumptively no longer a public record under the WFMA. On June 30, 2023, the office of the Attorney General promulgated 940 C.M.R. 37.00 on an emergency basis to implement the data privacy provisions of the WFMA. These regulations do not alter the WFMA’s presumption that ‘information provided by or relating to the holder of a Massachusetts license issued under section 8 of said chapter 90’ may no longer be treated as public records. See 940 C.M.R. 37.04(6). Because a driving record is a RMV record directly ‘related to’ a ‘license holder’, it is currently unlawful to release driving records to the public because the statute and regulations promulgated thereunder expressly exempt them. Work and Family Mobility Act of 2022, c. 81, § 7(a)-(b). In its response, MassDOT also cited 940 C.M.R. 37.04(6) which states in pertinent part: Nothing in these regulations shall be interpreted to authorize the designation as a public record of any information provided by or relating to (1) the applicant for a Massachusetts license, (2) the applicant for a learner’s permit, (3) the holder of a Massachusetts license, or (4) the holder of a learner’s permit. 940 C.M.R. 37.04(6). MassDOT further advised, “[b]ecause the regulations presently do not authorize the RMV to release the plate numbers you have requested as a public record, MassDOT must deny this portion of your request. We would note that the Attorney General’s office is seeking to amend the regulations to allow for the release of this information. Although the comment period for these amendments has been completed, the amendments have not yet been approved; if the

William J. Doyle, Esq. SPR23/2912; SPR23/2915 Page 4 December 18, 2023 amendments are approved, this information will again be available by means of a public records request.” The nature of Mr. Wallack’s request and the response that was provided to him raise issues that appear to invoke the Attorney General’s emergency regulation: information provided by or relating to the holder of a Massachusetts license issued under section 8 of said chapter 90 may no longer be treated as public records. See 940 C.M.R. 37.04(6). Please be advised that this office will be seeking the AGO’s opinion regarding the interpretation of this regulation. Consequently, I decline to opine. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack