Massachusetts Advisory Opinions October 11, 2001: AGO 01/02-01 (October 11, 2001)

AGO 01/02-01.

Dear Secretary Galvin:

You have requested an opinion regarding the status of certain information contained in the Central Voter Registry ("Central Registry"), a computer database created and maintained by the Office of the Secretary of the Commonwealth pursuant to G.L. c. 51, § 47C (2001 supp.) ("Section 47C").(fn1) This statute requires that your office make available to state party committees, statewide candidate committees, and state ballot question committees (collectively, "statewide committees") the names and addresses of registered voters contained in the Central Registry. You have asked whether your office is also obligated to provide such entities with the other voter information contained in the Central Registry (collectively, "voter information"). For the following reasons, I conclude that your office is obligated under the public records law to provide the public (including statewide committees) with access to voter information contained in the Central Registry.

Section 47C specifies that the Central Registry shall contain the names, addresses, and effective dates of registration of all registered voters in the Commonwealth. Id.(fn2) The municipal registrars enter and update this information in the Central Registry from the annual registers of qualified voters residing in their respective cities and towns, G.L. c. 51, §§ 1, 4(a), 37; and the registrars revise the annual registers to correct any errors. Id., § 38. In addition to compiling a list of active voters entered on the annual registers, the registrars maintain a list of inactive voters, restoring to the active list any inactive voters who vote in an election. G.L. c. 51, § 37A. (fn3)

Pursuant to Section 47C, your office has adopted regulations governing the use of the Central Registry, and these regulations call for the registrars to enter into the Central Registry all information required to maintain and update the annual registers. 950 C.M.R. § 58.03. Such information includes, but is not limited to, a voter's party enrollment; (fn4) the name, address, and date of inactivity of all voters designated as inactive; the number of inactive voters who were sent confirmation mailings under G.L. c. 51, § 37, and the number of responses thereto. Id. at § 58.03(1). The regulations also call for the registrars to enter into the Central Registry all information required under G.L. 51, § 4, if collected by the municipality.(fn5) Id. at § 58.03(3). As noted in the regulations, the purpose of the Central Registry is to maintain a state-wide list of all registered voters in the Commonwealth and to maintain, if collected by the municipality, the information called for by G.L. c. 51, § 4. 950 C.M.R. § 58.01.

By its terms, Section 47C mandates that your office make available to certain designated persons the names and addresses of registered voters contained in the Central Registry. The statute provides in relevant part as follows:

The names and addresses contained in said central registry shall not be a matter of public record; provided however, that they shall be available to state party committees, statewide candidate committees, state ballot question committees, the jury commissioner, adjutant general and any other individual, agency or entity that the state secretary shall designate by regulation consistent with the purposes of this section. . . .

G.L. c. 51, § 47C. The regulations promulgated by your office do not add any other persons or entities to those listed in Section 47C for purpose of access to registered voters' names and addresses.

Your specific inquiry is whether your office is also obligated to make available to statewide committees the voter information contained in the Central Registry, such as a voter's party enrollment. I conclude that your office is required to make such voter information available to statewide committees and other persons under the public records law.

A. Section 47C Does Not Specifically Or By Necessary Implication Exempt Voter Information From Disclosure Under the Public Records Law.

Public records are broadly defined by statute to include "documentary materials or data, regardless of physical form or characteristics," made or received by officers and employees of any agency of the Commonwealth, unless falling within specified statutory exemptions. G.L. c. 4, § 7 (26). As so defined, public records are subject to mandatory disclosure upon request, unless such records fall within a statutory exemption to that law. G.L. c. 66, § 10(b). In applying the public records law, there is a statutory presumption that the record sought is public, and the custodian of the document has the burden of proving with specificity the exemption which applies. G.L. c. 66, § 10(c); Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. 852, 857 (1995); District Attorney for Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Given this statutory presumption, the statutory exemptions from the public records law are strictly and narrowly construed. Attorney General v. Assistant Comm'r of Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). In addition, the existence of some exempt information in a document will not justify withholding the entire document, because the right of access extends to any nonexempt portion of a public record where the exempt portion can be redacted. G.L. c. 66, § 10(a) (permitting inspection of any public record or any "segregable portion of a record which is an independent public record"); Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. at 858.

Although you acknowledge that voter information contained in the Central Registry is subject to the public records law, you have invoked the statutory exemption for records "specifically or by necessary implication exempted from disclosure by statute," G.L. c. 4, § 7, cl. twenty-sixth (a), because Section 47C exempts the names and addresses contained in the Central Registry from the public records law. I conclude that this statutory exemption does not apply to voter information.

Section 47C requires that the Central Registry contain, at a minimum, registered voters' names, addresses, and effective dates of registration. The regulations promulgated by your office also require the inclusion of additional information in the Central Registry. In contrast, the exemption from the public records law in Section 47C refers solely to the "names and addresses" contained in the Central Registry. In order to construe this statutory exemption narrowly, one must give effect to this distinction. Given the plain language at issue, the statutory reference to "names and addresses" in Section 47C does not encompass the voter's date of registration or any other voter information contained in the Central Registry, such as the voter's party enrollment. Accordingly, a narrow reading of this exemption leads to the conclusion that only the names and addresses contained in the Central Registry are exempt from disclosure as public records, and that voter information constitutes public records subject to disclosure to the general public.

The statutory exemption for voters' "names and addresses" contained in the Central Registry must be considered in the context of Section 47C as a whole, in order to render the statute a consistent and harmonious provision capable of effectuating the Legislature's presumed intent. Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 376 (2000); see also 1979/80 Op. Att'y Gen. No. 3, Rep. A.G., P. D. No. 12 at 98, 101 (1979). While Section 47C exempts voters' "names and addresses" from the public records law, the statute contemplates that the Central Registry will include other information, such as a voter's effective date of registration. The Legislature declined to include any such voter information in the statutory exemption from the public records law for "names and addresses" contained in the Central Registry. Given that statutory exemptions to the public records law must be construed narrowly, the Legislature's decision to limit the exemption under Section 47C to names and addresses evinces a clear intent to allow all persons (including statewide committees) access to the voter information contained in the Central Registry, while providing only statewide committees with access to voters' names and addresses. See AT & T v. Automatic Sprinkler Appeals Bd., 52 Mass. App. Ct. 11, 14 (2001) (court's interpretation of G.L. c. 148, § 26 A ‹ is consistent with clear overarching intent of statute and with rule of statutory construction that exemptions be construed narrowly).

If the Legislature had intended to include voter information within the exemption from the public records law under Section 47C, it could easily have broadened the scope of the exemption from voters' "names and addresses," as the statute is written, to all voter information contained in the Central Registry. The Legislature declined to do so, thereby supporting the conclusion that voter information contained in the Central Registry is subject to the public records law.(fn6)

Nor is there reason to conclude that because Section 47C allows only statewide committees to have access to voters' names and addresses contained in the Central Registry, all persons (including statewide committees) do not have access under the public records law to any remaining information contained in the Central Registry. Where a provision allows specified entities access to one category of information, it does not necessarily follow that either the public or the specified entities lack access to other, related information. See, e.g., Attorney General v. Collector of Lynn, 377 Mass. 151, 53-54 (1979) (G.L. c. 60, § 8, which provides that records of a tax collector shall be open to inspection by the town auditor or other agent of the town at all reasonable times, was not meant to restrict citizens' right to inspect records under G.L. c. 66, § 10). Because such an interpretation does not arise "by necessary implication" from Section 47C, voter information does not fall within the statutory exemption from the public records law, G.L. c. 4, § 7, cl. 26(a).

Finally, in applying exemptions to the public records law, one must also consider whether the information in question is otherwise available to the public. See Globe Newspaper Co. v. Police Comm'r of Boston, 419 Mass. at 858; Attorney General v. Collector of Lynn, 377 Mass. at 158 (public availability of information reduces any expectation of privacy under exemption for disclosure that constitutes an unwarranted invasion of personal privacy, G.L. c. 4, § 7, twenty-sixth (c)). Here, substantially the same voter information is available to the public from other sources, namely the registrars of each city and town, each of whom enters and updates the voter information in the Central Registry. See G.L. c. 51, § 40 (registrars' records shall at suitable times be open to public inspection); § 41 (registrars shall preserve all documents in their custody relative to listing and registration, for two years after the dates thereof, provided that affidavits of registration shall be preserved and shall be deemed to be public records); § 55 (voting lists shall be printed and made available to any person, at a reasonable fee not to exceed the cost of printing the list, upon request).(fn7) The public availability of such voter information from the registrars additionally supports the conclusion that such information is not encompassed by the exemption from the public records law for voters' "names and addresses" under Section 47C.

B. Section 47C Requires that Your Office Provide Persons with Access to Voter Information, Regardless of Other Means of Access.

Given that the Central Registry is a database, and that the registrars enter the voter information therein, you have raised several issues as to application of the public records law to requests received by your office for voter information. You have asserted that your office is not a custodian of such voter information for purposes of the public records law, because the registrars of each city and town enter and update such information in the Central Registry and are in a better position than your office to provide access to such information. On this point, Section 47C calls for your office to "maintain" the Central Registry and states that voters' names and addresses contained therein "shall be available" to statewide committees.(fn8) The regulations adopted by your office governing the use of the Central Registry require the registrars to enter a voter's party and other information in the Central Registry. 950 C.M.R. § 58.03. The necessary implication of these provisions is that your office, which the Legislature has vested with control over the Central Registry, is the state entity responsible for making voter information available under the public records law, even though registrars from the cities and towns input the information into the Central Registry and may also have the ability or obligation to disclose any such information to which they have access. See G.L. c. 4, § 7, cl. 26 (defining "public records" as records "made or received" by officers or employees of state agencies or political subdivisions); G.L. c. 66, § 10 (applying public records law to "every person having custody of any public record"); 950 C.M.R. § 32.03 (defining the term "custodian" for purposes of public records law as "the governmental officer or employee who in the normal course of his or her duties has access to or control of public records").

Your office is required under the public records law to provide all persons with access to voter information contained in the Central Registry, regardless of any independent obligation of the registrars for information pertaining to voters in their respective city or town, given your office's access to and control of such information under Section 47C. G.L. c. 66, § 10. The public records law thus applies to voter information contained in the Central Registry.

You have noted, as a potential barrier to providing such access to voter information, that there is some variation as to the level of information entered by registrars in different cities and towns. Section 47C provides in relevant part that the Secretary shall maintain the Central Registry, "which shall contain, if provided by the registrars, the names, addresses and effective dates of registration of all registered voters in the commonwealth . . . ." This provision makes clear that your office is charged with maintaining the Central Registry, while the registrars are called upon to enter and update the voter information therein, and that your office would not be in a position to provide such information for a particular voter if the registrars had not entered it in the Central Registry. However, if the registrars have entered particular voter information in the Central Registry, your office is required to provide all persons with access, upon request, to that information.

You have indicated that the Central Registry contains a program to provide the names and addresses of registered voters, but does not have a similar function to provide "voter history" information contained therein, except by searching in a specific city or town as of a specific election date, so that "voter history" information can only be provided for one city or town at a time, through a "structured query language process." As a result, even though "voter history" information is contained as computer data in the Central Registry, you have stated that it would require a programming effort to provide access to such information from the Central Registry. Where, as here, existing information is subject to the public records law, ease of access is not a basis for a records custodian to decline access to such information on request. Your letter did not specify the particular voter information sought by various statewide committees, and it is not clear whether statewide committees have requested the complete "voter history," or instead seek particular categories of information required to be included in the Central Registry under Section 47C or the regulations. Any further issues as to public access to voter information may depend upon the nature of the information sought and the manner in which it is kept. I note that 950 C.M.R. § 32.05(4) provides in pertinent part that although "[a]ny person seeking access to a public record or any portion thereof shall provide a reasonable description of the requested record to the custodian so that he or she can identify and locate it promptly," "[a] custodian's superior knowledge of the contents of a governmental entity's files shall be used to assist in promptly complying with the request."

For the foregoing reasons, I conclude that your office is obligated to provide all persons (including statewide committees) with access, upon request, to voter information contained in the Central Registry under the public records law, and also to provide statewide committees with access to voters' names and addresses under Section 47C.

Sincerely,

Thomas F. Reilly

1. Section 47C provides in relevant part as follows:

Subject to appropriation, the state secretary shall maintain a central registry of voters which shall contain, if provided by the registrars, the names, addresses and effective dates of registration of all registered voters in the commonwealth . . . , and shall adopt regulations governing the operation of said central registry. The names and addresses contained in said central registry shall not be a matter of public record; provided however, that they shall be available to state party committees, statewide candidate committees, state ballot question committees, the jury commissioner, adjutant general and any other individual, agency or entity that the state secretary shall designate by regulation consistent with the purposes of this section, at a fair and reasonable cost not to exceed the cost of printing or preparing computer readable documents.

2. In part, the Central Registry implements various requirements imposed on states with respect to the administration of a voter registration system under the National Voter Registration Act of 1993, 42 U.S.C. § 1973gg et seq., such as procedures for removal of registrants from the voting rolls due to changed residence. See Association of Community Org. for Reform Now v. Miller, 912 F. Supp. 976, 979 (W.D. Mich. 1995). The primary purpose of the National Act is to increase the number of eligible citizens who register to vote in elections for federal office. 42 U.S.C. § 1973gg(a)(1).

3. In compiling the several lists, registrars may have the assistance of the police department, assessors and other suitable officers or employees of the city or town in securing the information needed. G.L. c. 51, § 14A.

4. Registrars track a voter's party because only those persons enrolled in a party are allowed to vote in that party's primary. G.L. c. 51, § 55; G.L. c. 53, § 37; Metros v. Secretary of the Commonwealth, 396 Mass. 156, 157 n. 4 (1985).

5. The regulations also call for the registrars to remove from the Central Registry all voters who are no longer registered to vote in their community. Id. at § 58.03(4).

6. If voter information were included in the exemption under Section 47C, statewide committees would be entitled to receive such information, as well as names and addresses.

7. See also 42 U.S.C. § 1973gg-6(I)(1) (each state shall maintain for at least two years and shall make available for public inspection all records (with certain exceptions) concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters).

8. Initially, Section 47C authorized your office, by agreement, to designate another state agency to manage the central registry, subject to control and supervision by your office. St. 1993, c. 475, § 22. The Legislature then deleted that provision. St. 1996, c. 454, § 14.