Elmir Simov v. Division of Occupational Licensure (SPR 20251392)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2025 SPR25/1392 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 prior appeals. See SPR25/0800 Determination of the Supervisor of Records (March 28, 2025) and SPR25/878 Determination of the Supervisor of Records (April 14, 2025). In my April 14th determination, I found that the Division had met its burden to withhold the telephone numbers and email addresses of private citizens, but that the Division had not demonstrated that all of the requested telephone numbers and email addresses were of a personal nature, rather than related to a business. The Division responded on April 29, 2025. Unsatisfied with the response, Mr. Simov petitioned this office and this appeal, SPR25/1392, 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). 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. SPR25/1392 Page 2 May 30, 2025 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 April 29th Response In its April 29, 2025 response, the Division informed Mr. Simov that it was withholding all of the requested email addresses and telephone numbers pursuant to Exemption (c) of the Public Records Law. Current Appeal In his May 16, 2025 petition to this office, Mr. Simov contended that the Division had failed to prove that all of the requested email addresses and telephone numbers were exempt from 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

Malav Patel, Esq. SPR25/1392 Page 3 May 30, 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 April 29th response, the Division stated: As stated in our March 31, 2025 response, the Division previously provided to Requestor all responsive records that are not subject to exemptions of the Massachusetts Public Records Law. The Division’s production of records consisted of lists of all active licensees, including, among other things, licensee names and their addresses of record. The Division withheld email addresses and telephone numbers from these active licensee lists, including licensed plumbers, pursuant to G. L. c. 4, § 7(26)(c), on the basis that many or most of the email addresses and telephone numbers are personal numbers, unrelated to the licensee’s business. The Division has noted on multiple occasions that it is unable to determine which of the thousands of telephone numbers and email addresses are related to a licensee’s business. However, based on a random sampling of licensees, we have determined that most applicants entered a personal email address and phone number when they chose to voluntarily enter this information in the license application. The Division weighed the privacy interest of our 24,000 individual plumbing licensees against the Requestor’s interest in obtaining this information and concluded that the privacy interest strongly outweighs the Requestor’s interest in obtaining this information. There is no discernible public interest in disclosing this information to the Requestor for the purpose of making commercial solicitations. 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 addresses that we have already provided to the Requestor. Based on the Division’s response, I find that it has met its burden to withhold the personal telephone numbers and email addresses of private individuals under Exemption (c) of the Public Records Law. However, the Division has not met its burden to withhold all of the requested telephone numbers and email addresses under Exemption (c). The Division’s assertion that “many or most of the email addresses and telephone numbers are personal numbers” is insufficient to demonstrate that all of the withheld telephone numbers and email addresses are of a personal

Malav Patel, Esq. SPR25/1392 Page 4 May 30, 2025 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). Sincerely, Manza Arthur Supervisor of Records cc: Elmir Simov