Jake Hentoff v. Massachusetts Department of Transportation (SPR 20233024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2023 SPR23/3024 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 petition of Jake Hentoff, Esq., of the Boston Globe Media Partners, LLC, on behalf of Laura Crimaldi, of the Boston Globe, appealing the response of the Massachusetts Department of Transportation (MassDOT) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 20, 2023, Ms. Crimaldi requested the following records: [1.] Massachusetts driving history for [an identified individual] of ... West Springfield, MA 01089. His Social Security Number is ... His Massachusetts driver’s license number is ...; [2.] Any/all application(s) for a Massachusetts driver’s license and/or commercial driver’s license or permit, and/or CDL self certification form submitted by [an identified individual] of ... Street West Springfield, MA 01089 since 8/9/2022; [3.] Any/all correspondence, including attachments, between the Massachusetts Registry of Motor Vehicles and [an identified individual] of ... Street West Springfield, MA 01089 regarding any/all applications by him for a Massachusetts driver’s license and/or commercial driver’s license or permit, and/or CDL self certification form since 8/9/2022; [4.] Receipts for any/all fees charged by Registry of Motor Vehicles for any/all license applications and road tests and any/all other expenses incurred by [an identified individual] of ... Street West Springfield, MA 01089 since 8/9/2022. MassDOT responded on December 7, 2023. Unsatisfied with MassDOT’s response, Attorney Hentoff petitioned this office and this appeal, SPR23/3024, was 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. SPR23/3024 Page 2 December 29, 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 7th Response In its December 7, 2023 response, MassDOT withheld the requested records, in their entirety, pursuant to Exemption (a) of the Public Records Law. 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.” 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

William J. Doyle, Esq. SPR23/3024 Page 3 December 29, 2023 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. In its response, MassDOT cited Chapter 81 of the Acts of 2022, the Work and Family Mobility Act (“WFMA”), which states in pertinent part as follows: Notwithstanding any general or special law to the contrary, any information provided by or relating to the holder of a Massachusetts license issued under said section 8 of said chapter 90 or the holder of a learner’s permit issued under said section 8B of said chapter 90, including failure to provide proof of lawful presence as defined in said section 1 of said chapter 90, including, but not limited to, personally identifying information and communications between the holder and the registrar of motor vehicles pursuant to said sections 8 or 8B of said chapter 90, shall neither be a public record nor be disclosed by the registrar, except as required by federal law or as authorized by regulations promulgated by the attorney general; provided, however, that information maintained by the motor vehicle insurance merit rating board pursuant to said section 57A of said chapter 6C may be disseminated for motor vehicle insurance purposes; and provided further, that any information disseminated for motor vehicle insurance purposes shall remain confidential and be used solely for the purpose of motor vehicle insurance. Work and Family Mobility Act of 2022, c. 81, § 7(a)-(b). Work and Family Mobility Act of 2022, c. 81, § 7(a)-(b).

William J. Doyle, Esq. SPR23/3024 Page 4 December 29, 2023 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). The nature of Mr. Hentoff’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: Jake Hentoff, Esq.