Steve Damish v. Brockton, City of - Law Department (SPR 20160789)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/789 Ms. Karen A. Fisher, Esq. City of Brockton - Assistant City Solicitor 45 School Street Brockton, MA 02301 Dear Attorney Fisher: I have received the petition of Steve Damish, Managing Editor of The Enterprise, appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66 § IO(b ); see also 950 C.M.R. 32.08(2). Specifically, The Enterprise requested copies of any record containing "the names of the finalists who applied and were interviewed" for a position as "spokesperson for the Brockton Police Department." In its response the City denied this request pursuant to the second clause of Exemption (c) of the Public Records Law, and Mr. Damish appealed. 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, § lO(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. 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Karen A. Fisher, Esq. SPR16/789 Page2 October 18, 2016 staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. The City's response In its August 25, 2016 response the City cited the privacy clause of Exemption (c) to deny access to responsive records. G. L. c. 4, § 7 (26) ( c ). In the response, you state that the City does not have a "list" of names of the individuals who were finalists for the Brockton Police Department director of communications and community relations position and were interviewed for the position. However, you informed Mr. Damish that the City has the candidates' applications which include cover letters, resumes, copies of drivers' licenses and driving records. It is my understanding that there were four (4 ) candidates who were finalists for the position, including the person who was ultimately hired. You posit that the three candidates who interviewed but were not hired for position have a privacy interest that outweighs any interest that the public may have in disclosure. Exemption (c) - privacy clause The City is withholding the records in their entirety pursuant to the second clause of Exemption (c) of the Public Records Law, as disclosure would implicate the privacy interests of the final applicants for the job. 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) 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 second clause of Exemption ( c) 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." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979).

Ms. Karen A. Fisher, Esq. SPR16/789 Page 3 October 18, 2016 The second clause of Exemption ( c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. Therefore, determinations must be made on a case by case basis. Job applicants for public (government) positions Th,e public can reasonably expect the disclosure of qualifications of job applicants for public (government) employment as well as those of public employees. Attorney General v. School Committee ofNorthampton, 375 Mass. 127, 130 (1978). Therefore, the education, employment history, academic achievements and qualifications are public information. Associated General Contractor v. U.S. Environmental Protection Agency, 488 F. Supp. 861, 863 (D.C. Nev. 1980). Such information is routinely presented in both professional and social settings, is relatively innocuous and implicates no applicable privacy or public policy exemption. Eskaton Monterey Hospital v. Myers, 184 Cal. Rptr. 840, 843 (1982). 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. Of Northampton, 375 Mass. at 132 n.5. 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. at 130. Consequently, upon attaining the status of a semi-finalist, an individual's identity as an applicant for public employment is no longer personal in nature, therefore, is not encompassed by Exemption ( c ). Some information concerning an applicants and public employee's educational and employment history, however, is of sufficiently personal nature to be exempt from mandatory disclosure. For example, social security numbers and information contained in an educational transcript such as grade point average and class rank is exempt from mandatory disclosure. Connolly v. Bromery, 15 Mass. App. Ct. 661, 662 (1983).

Ms. Karen A. Fisher, Esq. SPR16/789 Page4 October 18, 2016 Accordingly, whereas the responsive records are public, subject to redaction pursuant to the exemptions in the Public Records Law, the City may not withhold the records in their entirety pursuant to Exemption ( c) . Order I find the City has failed to respond to a request for public records. Accordingly, the City is hereby ordered to review the responsive records and provide Mr. Damish with a revised response to the request from The Enterprise, prepared in a manner consistent with this order, the Public Records Law and its Regulations. This response must include a custodial index of all records that are responsive to the request, and specifically noting what information was redacted or withheld from the responsive records and the applicable exemption in the Public Records Law. See 950 C.M.R. 32.08. 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. cc: Mr. Steve Damish