Samman, Marwan v. Executive Office of Labor and Workforce Development (SPR 20150584)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A. Williams Supervisor of Records

December 7, 2015 SPR15/584

Ms. Paula Lyons

Deputy General Counsel

Executive Office of Labor and Workforce Development One Ashburton Place, Suite 2112

Boston, MA 02108

Dear Attorney Lyons:

I have received the petition of Marwan Samman appealing the response of the Executive Office of Labor and Workforce Development (EOLWD) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Samman requested “[a]ll documents and data received and generated pursuant to the [j]ob posting for Construction Coordinator I, Posting ID J39547.”

In a response dated June 12, 2015, you provided Mr. Samman with certain responsive records, including the job description and qualifications as well as the locations of the electronic postings of that position. You also withheld other records under Exemptions (b) and (c) to the Public Records Law. G. L. c. 4, § 7(26)(b), (c). Mr. Samman appealed this response.

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 Dist. 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) In your June 12 letter, you claim the records are exempt from disclosure pursuant to Exemption (c). Exemption (c) applies to:

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Paula Lyons, Esq. SPR15/584 Page Two December 7, 2015

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)

Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a “personal nature.” Id. at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is “useful in making employment decisions regarding an employee.” Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Id.

In the June 12 letter, you explain to Mr. Samman that Exemption (c) “applies to your request in the event that you are seeking information regarding resumes and application materials which by their very nature are personal and generated/received with the proper expectation that such material will be kept confidential.” You also indicate that this information was “used in making internal employment decisions.”

I find that EOLWD has met its burden to withhold responsive records because they consist of information related to applications. This information is exempt from disclosure pursuant to the first clause of Exemption (c) because it may be “useful in making employment decisions.” I therefore decline to opine upon EOLWD’s Exemption (b) claim.

Reasonable description of requested records

A requester must provide a reasonable description of the requested record to the custodian so that he or she can identify and locate it promptly. See 950 C.M.R. 32.05(4). In his appeal petition, Mr. Samman suggests there must be several responsive records related to hiring successful candidates for the job, e.g., identity, qualifications, and salary information.

It is unclear whether Mr. Samman’s request was for records related to successful candidates. However, as discussed above, information that is useful in making employment decisions during the application process may be withheld under the first clause of Exemption (c).

Mr. Samman may wish to make a more specific request for records that includes timeframes or is related to candidates chosen for the job.

Ms. Paula Lyons, Esq. SPR15/584 Page Three December 7, 2015

No duty to create records; list of withheld documents

In his appeal petition, Mr. Samman requests that EOLWD provide him with a list of the withheld records along with an explanation of each applicable exemption.

The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian’s custody. G. L. c. 4, § 7(26) (defining “public records” as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining “custodian” as the public employee with routine access to or control of public records). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions.

Accordingly, whereas a requester may not compel a custodian to create a record, I find EOLWD is not required to produce a list of withheld documents.

Conclusion

Whereas I find EOLWD properly responded to Mr. Samman’s request, I will consider this appeal closed.

‘A. Williams upervisor of Records

cc: Mr. Marwan Samman