Elmir Simov v. Division of Occupational Licensure (SPR 20242993)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 15, 2024 SPR24/2993 Greer Spatz-Croxford, Esq. General Counsel Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Spatz-Croxford: I have received the petition of Elmir Simov appealing the response of the Division of Occupational Licensure (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 18, 2024, Mr. Simov requested that the Division “… share online with [him] and everyone else all the emails and numbers of all its active licensees.” Mr. Simov clarified that he was “… not asking for these records to be printed or emailed to [him] …” but requesting that the Division post the information online in its existing database. Previous Appeals A similar request was the subject of previous appeals. See SPR23/0295 Determination of the Supervisor of Records (February 27, 2023), SPR23/0441 Determination of the Supervisor of Records (March 17, 2023), SPR23/0598 Determination of the Supervisor of Records (April 12, 2023), and SPR23/0761 Determination of the Supervisor of Records (April 28, 2023). In his previous appeals, Mr. Simov requested “… a spreadsheet with the emails and phone numbers of all currently licensed plumbers in MA[.]” In my April 28th determination, I found that the Division had not met its burden to redact the requested information under Exemption (c) of the Public Records Law. On November 1, 2024, the Division provided a response. Unsatisfied with the response, Mr. Simov petitioned this office and this appeal, SPR24/2993, 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 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

Greer Spatz-Croxford, Esq. SPR24/2993 Page 2 November 15, 2024 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. 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 November 1st Response In its November 1, 2024 response, the Division stated: Please be advised, because your request is not for a public record but rather for the Division to provide certain information through its website as part of its online licensee database, the Division does not consider this to be a public records request pursuant to the Public Records Law, G.L. c. 66. The public records law does not require the Division to provide this information as part of its online licensee database. Furthermore, this request appears to be the same action brought by you that was recently dismissed in Simov v. Division of Occupational Licensure (2384CV01355), whereby you sought to have the Court order the Division to (1) create and publish online a spreadsheet with the potentially private phone numbers and email addresses of all business trade licensees in the Commonwealth; and (2) add a question to the license renewal process asking if the contractors prefer to be contacted by the public over email, phone, both, or none. This action was dismissed on September 20, 2024 whereby the court granted the Commonwealth’s motion to dismiss, writing that “[t]he relief plaintiff seeks is not within the scope of the Public Records Law, which requires government agencies to produce public records within their possession. It does not entitle members of the public to demand that agencies create records, whether physical or digital (such as an on-line database), or change any records they do possess (such as license applications).” Current Appeal In his November 1, 2024 petition to this office, Mr. Simov contends that “[t]he Public

Greer Spatz-Croxford, Esq. SPR24/2993 Page 3 November 15, 2024 Records Law requires that [the Division] provide these records because they are public and not private.” Mr. Simov emphasizes that he is “… not so concerned as to how [the Division] release[s] these records (as part of their existing online database or not) as [he is] concerned that these records are public and they need to be released to [him] and the public.” Where Mr. Simov’s October 18th request does not constitute a request for records under the Public Records Law, I find that no violation of G.L. c. 66, § 10 has been asserted by Mr. Simov in the appeal petition. Conclusion In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Given that no violation of G. L. c. 66, § 10 has been asserted by Mr. Simov in the appeal petition, I am unable to issue a determination at this time. If Mr. Simov 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, § l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Elmir Simov