Elmir Simov v. Division of Occupational Licensure (SPR 20250429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2025 SPR25/0429 Malav Patel, Esq. Assistant General Counsel Division of Occupational Licensure 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Attorney Patel: 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.” Previous Appeal This request was the subject of a previous appeal. See SPR24/3449 Determination of the Supervisor of Records (January 7, 2025). In my January 7th determination, I found that the Division had not met its burden to redact the responsive records pursuant to Exemption (c) of the Public Records Law, and ordered that Mr. Simov be provided with a further response. On January 22, 2025, the Division provided a response. Unsatisfied with the response, Mr. Simov petitioned this office and this appeal, SPR25/0429, 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 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. 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

Malav Patel, Esq. SPR25/0429 Page 2 February 27, 2025 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 January 22nd Response In its January 22, 2025 response, the Division stated: [T]his request concerns telephone numbers and email addresses for hundreds of thousands of licensees. These licensees provided this contact information to the Division during the application process, but because the application form does not specify whether the email address or phone number to be entered is personal or used in the conduct of the applicant’s business, the Division has no way to tell if the contact information on file with the Division is personal or associated with a business. In response to one of the multiple prior similar requests, the Division conducted a random sampling of licensees and found that most applicants entered a personal email address and phone number when they chose to voluntarily enter this information in the license application … In accordance with these criteria, the Division weighed the privacy interest of hundreds of thousands of individual licensees against the requestor’s interest in obtaining this information. There is no discernible public interest in disclosing this information to the requestor, who presumably wants to use it to send commercial solicitations targeted to licensees. These kinds of commercial solicitations can be disruptive when made to personal phone numbers or sent to personal email accounts, and can just as easily, and less intrusively, be sent by mail to the publicly available addresses of record that were provided to you … The address of record is a perfectly adequate means to contact licensees and provides the same information or means of contact. Current Appeal In his February 13, 2025 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. In a February 25, 2025 telephone conversation with this office, the Division indicated that it was currently revising its application processes, so that telephone numbers and email addresses provided by future applicants would be more clearly labeled as personal or business contact information.

Malav Patel, Esq. SPR25/0429 Page 3 February 27, 2025 Breadth of the Request Based on a review of Mr. Simov’s request, this office finds that his request is very broad in scope. Please be advised, in Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Mr. Simov and the Division to continue communicating to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. Simov and the Division communicate further as described above, Mr. Simov may file an appeal within ninety (90) days. See 950 C.M.R.

Malav Patel, Esq. SPR25/0429 Page 4 February 27, 2025 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Elmir Simov