Stanley Mazurczyk v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20240875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2024 SPR24/0875 Valerie Connolly Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Stanley Mazurczyk appealing the response of the Administrative Services Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 1, 2024, Mr. Mazurczyk requested six “...copies of responses you received from the Town of Chelmsford in response to [the] following determinations.” [1.] SPR21/2739 dated October 26, 2021 and all other pertinent responses to the original request for records[;] [2.] SPR21/2816 dated November 5, 2021[;] [3.] SPR22/0537 dated March 17, 2022[;] [4.] SPR23/1001 dated May 25, 2023[;] [5.] SPR23/1314 dated June 29, 2023[;] [6.] SPR23/1555 dated July 20, 2023[;] [7.] SPR24/0250 dated February 8, 2024[.] On March 6, 2024, Mr. Mazurczyk modified his request to include a seventh file number. The Division responded on March 14, 2024. Unsatisfied with the Division’s response, Mr. Mazurczyk petitioned this office and this appeal, SPR24/0875, 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 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 Connolly SPR24/0875 Page 2 April 5, 2024 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. The Division’s March 14th Response In its March 14, 2024 response, the Division provided redacted records for Items 4, 5, and 6. The Division cited Exemption (c) of the Public Records Law to redact the responsive records. The Division further advised, “[t]here are no records responsive for [Items 1, 2, 3, and 7] of your request.” 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. 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).

Valerie Connolly SPR24/0875 Page 3 April 5, 2024 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 its response, the Division stated: Under Exemption (c), the Division is withholding the requestor’s personal email address for the subject appeal referenced – SPR23/1001, the requestor’s personal email address and personal phone number for the subject appeal referenced - SPR23/1314 and the requestor’s personal email address for the subject appeal referenced – SPR23/1555. Disclosure of the redacted information would constitute an unwarranted invasion of personal privacy. Upon review, I find that to the extent that the records contain personal email addresses, and a personal phone number of the requestor, the Division may permissibly withhold such information from disclosure pursuant to Exemption (c) of the Public Records Law. No Duty to Create Records Under the Public Records Law, the Division is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the Division has produced records in its possession for Items 4, 5, and 6, confirmed that it does not possess records for Items 1, 2, 3 and 7 of the request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Mazurczyk is advised that this Division shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Stanley Mazurczyk