Igor Verbitzki v. Braintree, Town of - Town Solicitor (SPR 20161143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 22, 2016 SPR16/1143 Lisa Skehill Maki, Esq. Town of Braintree Office of the Town Solicitor One JFK Memorial Drive Braintree, MA 02184 Dear Attorney Skehill Maki: I have received the petition oflgor Verbitzki appealing the response of the Town of Braintree (Town) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Verbitzki requested a list of the current candidates on the Town's Fire Department hiring list, their scores and placement within the list, and a list of candidates on the current hiring list that have been hired by the Department. The Town denied the request in its entirety pursuant to Exemption (c) of the Public Records Law. Mr. Verbitzki 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, § 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, § IO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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 ofrecords shall One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Lisa Skehill Maki, Esq. SPR16/1143 Page 2 December 22, 2016 provide written good faith estimate). Once fees are paid, a records custodian 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 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. Exemption (c) The Town's September 8, 2016 response states that the requested documents are not a matter of public record, and therefore the documents have been withheld pursuant to Exemption ( c) of the Public Records Law. Your letter states, "[P]ersonnel records that are not of a public nature such as internal work evaluations have been withheld as disclosure of such records would constitute an unwarranted invasion of privacy. The Town cited Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester as applicable to withhold the records. 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). First Clause 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 has 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. The Wakefield Court also noted that not all information maintained in a personnel file is subject to examination under the first clause of Exemption (c). Information maintained for the

Lisa Skehill Maki, Esq. SPR16/1143 Page 3 December 22, 2016 ordinary administration of employees, such as payroll records, does not constitute such personnel information. Wakefield at 799. Public employees have a diminished expectation of privacy with respect to public employment matters. George W. Prescott Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). Certain otherwise personal information may be considered public if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (198); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The substantial public interest in ascertaining the manner in which public officials perform their official duties will also operate to lessen that which may be considered personal with respect to a public employee. Attorney General v. Collector of Lynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Company v. Clerk of the Third District Court of Bristol, 377 Mass. 404, 417 (1979). The public can reasonably expect the disclosure of qualifications of public employees. Attorney General v. School Committee ofNorthampton, 375 Mass. 127, 130 (1978). Therefore, a public employee's 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). 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. There is also 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.15. 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).

Lisa Skehill Maki, Esq. SPR16/1143 Page 4 December 22, 2016 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. 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 as an applicant for public employment is no longer personal in nature, therefore, is not encompassed by Exemption (c). Accordingly, I find that the Town has failed to meet its statutory and regulatory obligation of supporting any Exemption ( c) claim. I understand a member of my staff contacted you about this appeal. Order Accordingly, the Town is hereby ordered to provide Mr. Verbitzki with a detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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: Igor Verbitzki