Elmir Simov v. Division of Occupational Licensure (SPR 20243449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3449 Jean McCarthy Records Access Officer Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: 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 December 9, 2024, Mr. Simov requested that the Division “… share[] with [him] and everyone else all the emails and numbers of all its active licensees.” Mr. Simov further stated that he “… [left] it up to the Division [how] to share these public records.” Prior Appeals and Reconsideration. Two similar requests were the subject of prior appeals and a subsequent reconsideration. 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), SPR23/0761 Determination of the Supervisor of Records (April 28, 2023) and SPR24/2993 Determinations of the Supervisor of Records (November 15, 2024; December 6, 2024). In SPR24/2993, Mr. Simov requested that the Division “… share online with [him] and everyone else all the emails and numbers of all its active licensees.” In my November 15th determination, I found that Mr. Simov had not alleged a violation of G. L. c. 66, § 10 in his appeal petition. In my December 6th determination, I declined to reconsider my previous determination. On December 19, 2024, the Division provided a response. Unsatisfied with the response, Mr. Simov petitioned this office and this appeal, SPR24/3449, 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 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

Jean McCarthy SPR24/3449 Page 2 January 7, 2025 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. 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 December 19th Response In its December 19, 2024 response, the Division provided Mr. Simov with a list of all active licensees under its purview. The Division withheld the phone numbers and emails of said licensees under Exemption (c) of the Public Records Law. Current Appeal In his December 30, 2024 petition to this office, Mr. Simov objects to the withholding of the requested information, alleging that it is subject to disclosure under the Public Records Law. 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.

Jean McCarthy SPR24/3449 Page 3 January 7, 2025 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). When analyzing a privacy claim, there is 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. Based on the Division’s response, it is unclear how all of the requested telephone numbers and email addresses are exempt from disclosure under Exemption (c). The Division has not demonstrated that all of the withheld telephone numbers and email addresses are of a personal nature, rather than related to the licensees’ businesses. Consequently, it is not clear that the requested information constitutes intimate details of a highly personal nature, nor that disclosing the requested information constitutes an unwarranted invasion of personal privacy. It is also not clear whether the requested information is available from other sources. The Division must clarify these matters. Conclusion Accordingly, the Division is ordered to provide Mr. Simov with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Simov may appeal the substantive nature of the Division’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Elmir Simov