John Barrella v. Middleborough, Town of - Office of the Town Clerk (SPR 20252802)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 1, 2025 SPR25/2802 Pamela Menconi Town Clerk Town of Middleborough 20 Centre Street, First Floor Middleborough, MA 02346 Dear Ms. Menconi: I have received the petition of John Barrella III appealing the response of the Town of Middleborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 10, 2025, Mr. Barrella requested, “…the town employee’s name along with make, model, year, and acquisition date of each vehicle, and indicate whether the vehicle is owned or leased by the town.” The Town responded on September 24, 2025, assigning the request reference number 25-405. Unsatisfied with the Town’s response, Mr. Barrella petitioned this office and this appeal, SPR25/2802, was opened as a result. While this appeal was pending, the Town provided a supplemental response on September 26, 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. 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

Pamela Menconi SPR25/2802 Page 2 October 1, 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 Town’s September 24th and September 26th Responses In its September 24, 2025 response, the Town provided responsive records redacted pursuant to the Federal Driver Privacy Protection Act as it operates through Exemption (a), as well as Exemption (b) of the Public Records Law. The Town also stated that it “has nothing else responsive to this request.” In a supplemental response on September 26, 2025, an attorney for the Town stated, “…the Town does not have anything else responsive to this request and there is no obligation to create a record in response to a public records request.” Current Appeal In his appeal petition, Mr. Barrella stated, “[t]he Town has failed to provide certain records known to be in its possession, including but not limited to vehicle identification numbers (VINs) and the names of employees regularly assigned to and/or operating these vehicles on a daily basis.” In subsequent emails to the Town and this office on September 30, 2025 and October 1, 2025, Mr. Barrella provided part of “the Town’s vehicle policy,” in support of his request for a list of the “the vehicle list with the names of the employees to whom each vehicle is assigned.” Also on October 1, the Town stated, “[t]he document you are looking for in the below language from the pr request does not exist and would have to be created.” No Duty to Create Records Regarding the request for the “names of the employees to whom each vehicle is assigned,” please be advised that under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Given that the Town has confirmed that it possesses no records responsive to this part of the request, and this office has no authority to compel the Town to create records, I find that this portion of Mr. Barrella’s appeal is resolved.

Pamela Menconi SPR25/2802 Page 3 October 1, 2025 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. Federal Driver Privacy Protection Act In its September 24, 2025 response, the Town cited Federal Driver Privacy Protection Act, which provides in pertinent 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: (1) personal information, as defined in 18 U.S.C. 2725(3)… (2) highly restricted personal information, as defined in 18 U.S.C. 2725(4)… 18 U.S.C. § 2721 (a)(1)-(a)(2). It should be noted that personal information, as defined in 18 U.S.C. 2725(3), 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

Pamela Menconi SPR25/2802 Page 4 October 1, 2025 not include information on vehicular accidents, driving violations, and driver’s status. 18 U.S.C. 18 U.S.C. 2725(3). Further, highly restricted personal information, as defined in 18 U.S.C. 2725(4) means: …an individual’s photograph or image, social security number, medical or disability information… 18 U.S.C. 2725(4). Under Exemption (a), the Town stated, “…vehicle identification and serial numbers have been redacted pursuant to the Federal Driver Privacy Protection Act, which protects personal information held by the Registry of Motor Vehicles.” Based on the Town’s response, it is unclear how the above referenced statutes permit it to withhold the vehicle identification and serial numbers from disclosure. Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Town cites the Federal Driver Privacy Protection Act, it remains unclear how the statutes specifically or by necessary implication permit the Town to withhold the requested information from disclosure. The Town must clarify this matter. Exemption (b) Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act).

Pamela Menconi SPR25/2802 Page 5 October 1, 2025 The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the Town stated: Certain police vehicle information has been withheld pursuant to Exemption (b) of the public records law… Disclosure of identifying features of certain police vehicles would detrimentally interfere with the proper performance of the police department where the anonymity of the vehicle is necessary to the job function and safety of personnel. Based on the Town’s response, the Town has not demonstrated how the withheld police vehicle information relates solely to internal personnel rules and practices of the government unit. Additionally, the Town has not established how disclosure of the withheld information would hinder the proper performance of necessary governmental functions. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Mr. Barrella 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. Barrella may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Barrella III