Shibley, Craig v. Office of the District Attorney - Worcester District (SPR 20150349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 15, 2015 SPRlS/349 Mr. Christopher P. Hodgens, Esq. Worcester County District Attorney's Office 225 Main Street G 301 Worcester, Ma 01608 Dear Attorney Hodgens: I have received the petition of Craig Shibley appealing the response of Worcester County District Attorney's Office (DAO) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shibley requested copies of "professional vitae" of four specifically identified state troopers assigned to the DAO's Detective Unit. In a response dated April 27, 2015 the DAO denied his request in its entirety citing to Exemption (c), the privacy exemption to 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, § 10(c); 950 C.M.R. 32.08(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 town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (c) The DAO denied Mr. Shibley's request, citing Exemption (c) of the Public Records Law. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. G. L. c. 4, § 7(26)(c) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Christopher P. Hodgens, Esq. SPR15/349 Page Two July 15, 2015 While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define "personnel [file] or information." G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is "useful in making employment decisions regarding an employee" may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher's Ass'n, 431 Mass. at 798, quoting Oregonian Publ. Co. v. Portland Sch. Dist. No. II, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield Teacher's Ass'n, 431 Mass. at 798. The Court determined that exempting personnel information from disclosure serves to protect the government's ability to function effectively as an employer. Id. at 802. The release of certain personnel information could disrupt the government's capability to conduct sensitive and careful investigations regarding employees. Id. Given that the requested personnel file contains employment applications and employee work evaluations, the DAO may withhold this information pursuant to Exemption (c). However, Exemption (c) does not automatically render all records found in a personnel file exempt, nor does it provide a complete blanket for all records relating to an employee. See Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-90 (1979). In fact, some responsive records may contain non-exempt information. In this instance, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). Information concerning a subject's relevant education, certifications or training found on an individual's professional vitae or resume are subject to disclosure upon request as public employees have a diminished expectation of privacy in matters relating to their public employment, and the public has a legitimate interest in knowing whether public employees possess the qualifications, applicable educational degrees and certifications necessary to perform their jobs. See Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). The question of whether vocational qualifications and training may be exempted from disclosure pursuant to Exemption (c) of the Public Records Law is well settled. Massachusetts Courts have consistently recognized the public's interest in the qualifications and performance of all government employees. John J. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 863-64 (1975); Rotkiewicz v. Sadowsky, 431 Mass. 748,753 (2000); Daniel Lynch v. News Group Boston, Inc., 1 Mass. L. Rep. 9, 4 (1993); Charles Mazetis v. The Enterprise Publishing Co., 22 Mass. L. Rep. 380, 10 (2007).

Mr. Christopher P. Hodgens, Esq. SPR15/349 Page Three July 15,2015 When discussing the application of Exemption (c) to withhold records concerning professional qualifications, the Attorney General's Office opined that professional training and experience were not exempt from disclosure under Exemption (c) to the Public Records Law. 1976-77 Op. Atty Gen. Mass. 157 at 12. ("It is my opinion that educational and professional training and experience are not exempted from disclosure by Exemption (c)."). Specifically, any relevant degrees and certifications listed on a public employee's resume are subject to disclosure upon request. Public employees have a diminished expectation of privacy in matters relating to their public employment, and the public has a legitimate interest in knowing whether public employees possess the degrees and certifications necessary to perform their jobs. See Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). The requested professional vitae or resumes contain information related to the degrees, certifications, professional training and experience of members ofthe DAO's Detective Unit staff. The existence of such skills and qualifications are in the public interest, as such staff members hold themselves to be qualified for the positions they hold. It is, therefore, the finding of this office that the DAO may not withhold the requested resumes from disclosure as personnel records under the first clause of Exemption (c) of the Public Records Law. Accordingly, the DAO is hereby ordered, within ten (10) days ofthis order, to provide Mr. Shibley with the requested records. If the DAO maintains that any portion ofthe responsive records are exempt from disclosure, as indicated in this order, the DAO must, within ten (1 0) days provide to Mr. Shibley a written explanation, with specificity, how a particular exemption applies to each redacted portion of the responsive records. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. aw Supervisor of Records cc: Ms. Craig Shibley