Collin Dias v. Massachusetts Department of Transportation (SPR 20252004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2025 SPR25/2004 William Doyle, Esq. Records Access Officer Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Doyle: I have received the petition of Collin Dias appealing the response of the Department of Transportation (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 2, 2025, Mr. Dias requested “any records of citations / warnings, given to [a named individual, with specified date of birth].” The Department responded on July 9, 2025, and assigned reference number P001397- 070225 to this request. Unsatisfied with the Department’s response, Mr. Dias petitioned this office, and this appeal, SPR25/2004, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 Doyle, Esq. SPR25/2004 Page 2 July 24, 2025 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 Department’s July 9th Response In its July 9, 2025 response, the Department cites the Drivers Privacy Protection Act, as it operates through Exemption (a) of the Public Records Law, for withholding responsive records. See G. L. c. 4, § 7(26)(a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Driver Privacy Protection Act Disclosure of certain personal information contained in state motor vehicle records is restricted by the Driver Privacy Protection Act (Act). The Act provides in pertinent part: (a) In general.--A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. 2725(3), about any

William Doyle, Esq. SPR25/2004 Page 3 July 24, 2025 individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or (2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual’s driver’s license or affect the administration of organ donation initiatives in the States. 18 U.S.C. § 2721(a). “Personal information,” as used in the above statute, is defined as follows: “personal information” means information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status. 18 U.S.C. § 2725(3). In its July 9th response, under 18 U.S. Code § 2721, the Department argues the following for withholding responsive records: Please be advised that the federal Drivers Privacy Protection Act (18 U.S. Code § 2721) states, in part, “a State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity, personal information about any individual obtained by the department in connection with a motor vehicle record...personal information includes the individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information”. We cannot, therefore, provide this information as part of a public records request. In limited circumstances, however, you may be entitled to receive this information outside of a public records request- you may . . . access and download the Request for Personal Information in RMV Records form. Please carefully review the twelve categories in Section B to insure you are entitled to this information and, if so, complete and sign the form (make sure to check off which one of the categories applies to you) and return it to us in an attachment, along with a copy of your photo identification. (If you are an attorney, you will also need to include a copy of your Board of Bar Overseers card.) We will review the form and if you meet the requirements for the release of this information, it will

William Doyle, Esq. SPR25/2004 Page 4 July 24, 2025 be forwarded to the correct department. In this case, where Mr. Dias has requested “citations/warnings,” it is unclear how responsive records would constitute “personal information,” as defined in the DPPA Act. The Department must clarify this. Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide Mr. Dias 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. Dias may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Collin Dias