Karyn Regal v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20170857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 11, 2017 SPR17/857 Tori T. Kim, Esq. General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Kim: I have received the petition of Karyn Regal of WBZ News Radio/CBS Radio appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Ms. Regal requested a copy of records regarding the Facilities Health/Safety and Records Field Manager, specifically: 1. An official job description, 2. The resume and application of the identified person hired, and 3. The records of how many people applied for the job and how many people were interviewed. In a June 6, 2017 response, you denied Ms. Regal's request for the specified records pursuant to the personnel clause of Exemption (c) of the Public Records Law. Instead, you provided Ms. Regal with excerpts from the identified person's resume pertaining to education and relevant certifications, and you provided the identified person's job title and functional job title. Ms. Regal petitioned this office and this appeal was opened. 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, § lOA( d); 950 C.M.R. 32.03(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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Tori T. Kim, Esq. SPR17/857 Page 2 July 11, 2017 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (c) Your June 6th response states that the EOEEA has located records that may contain some of the information that Ms. Regal requested; however, the records are contained in the identified person's personnel file and are protected 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). 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). Where the EOEEA has claimed that the first clause of Exemption (c), the personnel clause, applies to withhold the records, only the first clause will be analyzed in this determination. 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). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). While statutorily exempting personnel information from the expansive definition of public records, the Massachusetts Legislature did not explicitly define "personnel [file] or information." G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief ofPolice of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The classification by custodians of records or materials as personnel information is not conclusive. Wakefield, 431 Mass. at 798. Instead, the nature or character of the documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386.

Tori T. Kim, Esq. SPR17/857 Page 3 July 11, 2017 The Court also noted that not all information maintained in a personnel file is subject to exemption under the first clause of Exemption (c). Information maintained for the ordinary administration of employees, such as payroll records, does not constitute such personnel information. Wakefield, 431 Mass. at 799. The identified person who is the subject of the job description, resume and application is a public employee. 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. ofWestport, 401 Mass. 306, 308 (198); Globe Newspaper Co., 388 Mass. at 438. 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 Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Co. v. Clerk ofthe Third District Court of Bristol, 377 Mass. 404, 417 (1979); 1976-77 Op. Atty Gen. Mass. 157 at 12. ("It is my opinion that educational and professional training and experience are not exempted from disclosure by Exemption (c)."). The question of whether professional vocational qualifications and training may be exempted from disclosure pursuant to Exemption (c) of the Public Records Law is well settled. Massachusetts Courts have consistently recognized the public's interest in the qualifications and performance of all government employees. John J. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 863-64 (1975); Rotkiewicz v. Sadowsky, 431 Mass. 748, 753 (2000); Daniel Lynch v. News Group Boston, Inc., 1 Mass. L. Rep. 9, 4 (1993); Charles Mazetis v. The Enterprise Publishing Co., 22 Mass. L. Rep. 380, 10 (2007). While the EOEEA has provided Ms. Regal with the job title, functional job title and has indicated that the identified person has approximately fourteen years of experience, a high school diploma and completed some college, the EOEEA has withheld the official job description, the resume and application. The EOEEA's response to Ms. Regal does not provide an explanation on whether the EOEEA has a responsive job description for this identified person's position, and if so the EOEEA has neither provided the job description nor properly claimed an exemption to withhold it. As discussed in this determination, the fact that these records may be held in a personnel file does not render the records completely exempt as personnel records under Exemption (c). The public has a paramount interest in gauging whether an individual has the requisite education and training for the particular position for which he or she applied and was hired. The EOEEA has only provided general information concerning the identified person's prio~ job experience and education without a sufficient reason to withhold the specifics. Furthermore, the EOEEA has not explained why the resume and application could not have been provided in a redacted format pursuant to Exemption (c).

Tori T. Kim, Esq. SPR17/857 Page4 July 11, 2017 Number ofa pplicants Lastly, the EOEEA did not provide Ms. Regal with records responsive to the number of people who applied for the position or the number of people who interviewed for the position. Here also, the response does not provide the requested information, nor has the EOEEA provided any explanation why this information cannot be provided. I find that the EOEEA did not meet its burden of explaining why the particular records requested by Ms. Regal have been withheld, and why those records could not be redacted under the exemptions in the Public Records Law. See G. L. c. 66, § 10(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979) (statutory exemptions are not blanket in nature). Order Accordingly, the EOEEA is hereby ordered to provide Ms. Regal with another response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Ms. Regal may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Karyn Regal