Damir Davis v. Shirley, Town of (SPR 20250627)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 18, 2025 SPR25/0627 William Oelfke Town Clerk Town of Shirley 7 Keady Way Shirley, MA 01464 Dear Mr. Oelfke: I have received the petition of Damir Davis, of MetroGov Solutions Inc., appealing the response of the Town of Shirley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 19, 2025, Damir Davis requested the following: [C]opies of all email lists maintained by Shirley MA. This request includes, but is not limited to, the following email databases: 1. Business Database – Any email lists associated with business licenses, registrations, permits, business tax filings, or economic development programs. 2. Dog Licensing Database – Any email lists associated with dog licenses, kennel permits, or other animal control-related communications. 3. Election Worker Database – Any email lists of current or past election workers, including poll workers, election officials, and other individuals engaged in election administration. 4. Website Subscriber List – Any email lists of individuals subscribed to municipal newsletters, emergency alerts, website notifications, or general updates. 5. Boards and Committees Database – Any email lists of members of municipal boards, commissions, and committees, including appointed and elected officials. 6. Recreation and Community Programs – Any email lists of individuals registered for municipal recreation programs, senior center activities, youth programs, or community events. 7. Taxpayer Email List – Any email lists associated with property tax notifications, excise tax billing, or water/sewer billing notifications. 8. Library and Cultural Services – Any email lists related to library 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 Oelfke SPR25/0627 Page 2 March 18, 2025 cardholders, cultural programs, historical society updates, or educational initiatives. Previous Appeal This request was the subject of a previous appeal. See SPR25/0510 Determination of the Supervisor of Records (March 4, 2025). In my March 4th determination, I found that it was unclear which exemption of the Public Records Law the Town was citing in order to withhold responsive records. Subsequently, the Town responded on March 5, 2025. Unsatisfied with the Town’s response, Damir Davis petitioned this office, and this appeal, SPR25/0627, was opened as a result. Subsequent to the opening of this appeal, the Town provided a further response to this office on March 6, 2025. 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. 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. Current Appeal In the appeal petition, Damir Davis contends, among other things: - The website subscriber list consists of individuals who voluntarily signed up to receive public notifications regarding municipal affairs. This differs significantly from personally sensitive or involuntary disclosures that Exemption C is designed to protect. - Many Massachusetts municipalities, including Shirley, actively encourage residents to subscribe to these lists, further supporting that the data serves a public and civic function, not a private one. . . .

William Oelfke SPR25/0627 Page 3 March 18, 2025 - Massachusetts case law and guidance from the Supervisor of Records establish that Exemption C applies when disclosure would constitute an “unwarranted invasion of personal privacy.” - The nature of the website subscriber list does not meet this threshold, as it merely contains email addresses voluntarily submitted for receiving public notifications. - There is no reasonable expectation of privacy for individuals who have signed up to receive public notices from a municipal website. . . . - Even if some subscribers’ email addresses warrant protection under Exemption C, Massachusetts Public Records Law requires that records be segregated and redacted rather than withheld in full. - A selective review could distinguish between individuals who subscribed using personal versus business/government-affiliated email addresses. The Town’s March 5th and 6th Responses In its March 5, 2025 response, the Town explains that “most of the e-mail lists that you request do not exist in our Town of Shirley databases (Business Database, Dog Licensing Database, Boards and Committees Database, Recreation & Community Programs, Taxpayer Email List, and Library and Cultural Services) therefore, cannot be provided to you.” The Town also cites Exemption (c) of the Public Records Law for withholding two e-mail lists. In an email to this office on March 6th, the Town reiterates its claims for withholding the two email lists under Exemption (c). Exemption (c) Exemption (c) applies to: 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

William Oelfke SPR25/0627 Page 4 March 18, 2025 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. In its March 5th response, under Exemption (c), the Town argues the following: [R]equests for e-mail lists from the remaining two areas (Election Worker Database & Website Subscriber List), though existing, are exempt from the Public Records Request process due to Mass General Law, Chapter 4, Section 7 (twenty sixth) Exemption (c). The e-mails from those two remaining e-mail lists are of private citizens in town, not public officials. The Election Worker database is a list of citizen volunteer Election Workers that assist the Town Clerk (myself) run numerous Town, State and Federal Elections. The Website Subscriber List is a list of citizens who wish to receive notifications from the Town on specific boards or committee meeting dates and agendas, or emergency alerts and such. An exemption to the Public Records Request of this type is found in Mass General Law Chapter 4, Section 7 (twenty sixth). In its March 6th email, the Town further argues the following: The main issue is that the request is asking for personal e-mail addresses of private citizens in Town. The appeal states that the website subscriber list consists of individuals who voluntarily signed up to receive public notifications regarding municipal affairs so the requester should be able to get their email requests since they wish to send them e-mails to share publicly available civic information to them. However, the major difference is that these citizens purposely signed up for OUR TOWN’S public notifications not thinking we would provide their e-mails to other entities to spam them with additional e-mails they did not request. Bottom line ... is that information regarding personal e-mails of personal citizens does not fall into the scope of PUBLIC Records Requests since they are not requesting Public Records such as town documents on file, town employee phone numbers, e-mail addresses, salaries, etc. (which are all public), they are requesting personal citizen e-mail addresses which the citizens should be allowed to decide who to share their e-mail with, not the Town deciding to share their e-mail addresses. This will highly discourage citizens to sign up for [Town] notifications knowing [the Town] will then share that information with anyone who requests it. Personal email addresses, which are generally not listed within any sort of directory or available by any other means of a public search, similar in many respects to unlisted phone numbers, favor a finding of non-disclosure. The public interest in disclosure of this information

William Oelfke SPR25/0627 Page 5 March 18, 2025 does not outweigh the privacy interests associated with the withheld email lists. Consequently, I find that the Town has met its burden to withhold the email lists pursuant to Exemption (c) of the Public Records Law. See G. L, c. 4, § 7(26)(c). Conclusion Accordingly, I will consider this administrative appeal closed. If Damir Davis 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, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Damir Davis