Patrick N. Bryant v. Burlington, Town of - Town Administrator (SPR 20160311)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 27,2016 SPR16/311 Ms. Michele E. Randazzo, Esq. Kopelman and Paige, P.C. 101 Arch Street Boston, MA 0211 0 Dear Attorney Randazzo: I have received the petition of Patrick Bryant, Esq. on behalf of Massachusetts Veteran's Edge (MVE) appealing the response of Town of Burlington (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, MVE requested nine (9) categories of records related to veteran's employment in the Town. In a response dated March 11, 2016 the Town indicated it would provide certain records for a fee and withhold others under Exemptions (a) and (c) as well as G. L. c. 66, § 10. G. L. c. 4, § 7(26)(a), (c). MVE paid the fee and obtained records that contained certain information but portions were withheld. Attorney Bryant appealed the withholding of the redacted information. 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, § 1 0( 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 (a) The Town claims information may be withheld under G. L. c. 214, § lB. the so-called Right to Privacy statute as it operates through Exemption, (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Michele E. Randazzo, Esq. SPR16/311 Page2 May 27,2016 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 Attorney 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. The Right to Privacy statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Exemption (c) In its March 11 response, the Town claims certain responsive information may be withheld under Exemption (c). Exemption (c) permits the withholding of: 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) First clause 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

Ms. Michele E. Randazzo, Esq. SPR16/311 Page 3 May 27,2016 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. There is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.l5. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Collector of Lynn, 377 Mass. at 158. As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Second clause Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Id. It should be noted that a general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his identity, thus, certain information may be withheld pursuant to Exemption (c). See Attorney Gen. v. School Comm. ofNorthampton, 375 Mass. 127, 132 n.5 (1978). However, once applicants have undergone a preliminary screening, the privacy interests of the individuals selected for further consideration are less substantial than the privacy interests of applicants who do not reach that level of consideration. Id. at 130. An applicant's identity becomes progressively less personal as the individual approaches the final stages of the applicant screening process. Therefore, an applicant who reaches the level of a semi-finalist has become elevated to a greater position of public trust and should expect open and public discussion of his candidacy. Id. Consequently, upon attaining the status of a semi-finalist, an individual's identity

Ms. Michele E. Randazzo, Esq. SPR16/311 Page4 May 27,2016 as an applicant for public employment is no longer personal in nature, therefore, is not encompassed by exemption (c). The Town redacted information within the records provided to Attorney Bryant. While certain information such as social security numbers and personal email address may be withheld under the second clause of Exemption (c), it is not clear how other redacted information, such as ethnicity, can be withheld. See Boston Globe Media Partners, LLC v. City of Boston, Suffolk Sup. No. 14-03952 (May 9, 2016). Further, it is not clear which of the nine (9) categories of requested records have been provided. In a letter dated March 22, 2016, the Attorney Bryant explains "we are willing to forgo disclosure of names of applicants screened out at a preliminary stage. We are also willing to limit our request to names of individuals with military or veteran status, as described in the initial letter." You informed an attorney on my staff the Town is willing to provide further veteran status designation information. Conclusion In light of Attorney Bryant's March 22letter and the Town's willingness to provide further information, I will consider this appeal closed with the proviso that the Town provides Attorney Bryant with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. This response must explain which of the responsive records have been provided. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Bryant a written explanation, with specificity, how a particular exemption applies to each record. 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. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public

Ms. Michele E. Randazzo, Esq. SPR16/311 Page 5 May 27,2016 Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upo request. Please contact my office directly at the telephone number provided in this determina n for further information. illiams cc: Mr. Patrick Bryant, Esq.