Elmir Simov v. Division of Occupational Licensure (SPR 20250878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2025 SPR25/0878 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 March 7, 2025, Mr. Simov requested “… a spreadsheet of all the phone numbers and emails of the active plumbers in MA.” Prior Appeal This request was the subject of a prior appeal. See SPR25/0800 Determination of the Supervisor of Records (March 28, 2025). In my March 28th determination, I found that the Division intended to provide Mr. Simov with a response, and ordered it to do so within ten business days. The Division provided a response on March 31, 2025. Unsatisfied with this response, Mr. Simov petitioned this office and this appeal, SPR25/0878, 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. 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 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. SPR25/0878 Page 2 April 14, 2025 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 March 31st Response In its March 31, 2025 response, the Division referred Mr. Simov to its response to a prior, similar request, in which the Division produced a list of all active licensees under its purview. In that response, the Division withheld the telephone numbers and email addresses of said licensees under Exemption (c) of the Public Records Law. Current Appeal In his March 31, 2025 petition to this office, Mr. Simov contends that the requested telephone numbers and email addresses are subject to disclosure under Exemption (c). 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). 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

Malav Patel, Esq. SPR25/0878 Page 3 April 14, 2025 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 a previous response to Mr. Simov dated January 22, 2025, the Division stated: [T]he 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 … 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. On the other side of the balancing scale, the Division determined that persons applying for a vocational license should not be subjected to unwanted solicitation on their telephones or email addresses. The address of record is a perfectly adequate means to contact licensees and provides the same information or means of contact. Accordingly, the Division concluded that the privacy interest strongly outweighs the requestor’s interest in obtaining this information. To the extent that the requested records contain the personal telephone numbers and email addresses of private individuals, I find that the Division may properly redact such information under Exemption (c) of the Public Records Law. However, 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 each of the requested telephone numbers and email addresses constitutes intimate details of a highly personal nature, nor that disclosure thereof would constitute 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).

Malav Patel, Esq. SPR25/0878 Page 4 April 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Elmir Simov