Patrick N. Bryant v. Boston, City of - Police Department (SPR 20160729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/729 Ms. Nicole Taub, Esq. Boston Police Department One Schroeder Plaza Boston, MA 02021 Dear Attorney Taub: I have received the petition of Patrick Bryant appealing the nomesponse of the City of Boston - Police Department (Department) to requests for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). This request was the subject previous appeals. Specifically, in two (2) separate requests dated April27, 2016, Mr. Bryant requested five (5) categories of"lists" (SPR16/337) and two (2) categories of"breakdowns" (SPR16/338) related to the Department cadet program and the Department's hiring processes. In a response dated August 19, 2016 the Department informed Mr. Bryant that it intends to withhold records responsive to requests number 4 that: identify individuals bypassed or otherwise rejected for appointment to the position of police officer: and request number 5 regarding appeals or challenges to the bypass or rejection of individuals for entry level police officer pursuant to the privacy exemption to the Public Records Law. G. L. c. 4, § 7 (26) (c. 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). 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Nicole Taub, Esq. SPR16/729 Page2 September 16, 2016 Exemption (c) 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) The privacy exemption contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id; Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). 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, relevant to this appeal, applies to personnel information that is of a personal nature and relates to a specifically named individual. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court has refined the analysis to be employed when considering the public record status of personnel records. The Court has defined personnel information that is "useful in making employment decisions regarding an employee" may be withheld pursuant to the first clause of Exemption (c) ofthe Public Records Law. Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The Court found that personnel information includes "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield at 798. Identification of an individual as a candidate for a public position indicates that he is actively pursuing a career change. An individual's career choice can be characterized as a personal matter. Northampton, 375 Mass. 127, 132 n.5 (1978). Generally, an applicant would not reveal his candidacy or the details of his application to a stranger, since such disclosure could affect his ability to function in his present employment. Accordingly, a general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his identity, thus, his identity and corresponding application records may be withheld pursuant to the first clause of Exemption (c). In its response the Department explained that the records responsive to requests 4 and 5 contain information that is "useful in making employment decisions regarding an employee" gathered in the application process relating exclusively to individuals bypassed or rejected for

Ms. Nicole Taub, Esq. SPR16/729 Page 3 September 16, 2016 appointment. Accordingly, the responsive information is properly withheld under Exemption (c) of the Public Records Law. s cords cc: Mr. Patrick N. Bryant