Frank Phillips v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20170872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 12, 2017 SPR17/872 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 Frank Phillips of The Boston Globe appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Phillips requested "all emails generated and received by Alex Cahill, when working as chief of staff to the secretary, and by Secretary Matthew Beaton, that relate to decisions on hiring staff within the secretariat and its agencies." Previous appeal This request was the subject of a previous appeal. See SPR17/728 Determination of the Supervisor of Records (June 9, 2017). I closed SPR17/728 by ordering EOEEA to provide Mr. Phillips with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The EOEEA provided a response dated June 26, 2017 in which it denied access to responsive records under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). Mr. Phillips appealed and SPR17/872 was opened as a result. 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, § 10A(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). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832o Fax: (617) 727-5914 o sec.state.ma.us/pre pre@sec.state.ma.us o

Tori T. Kim, Esq. SPR17/872 Page 2 July 12, 2017 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); 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). 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, § 10(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) In EOEEA's June 26th response you indicate "[b]ased on further investigation, we have determined that no portions of the records identified as falling under the "c" exemption can be disclosed." You explain that that "the emails identified fall into two categories: (i) copies of job applications submitted through the state's 'MassCareers' website and forwarded to Alexandra Cahill; and (ii) emails sent to Ms. Cahill attaching resumes of potential job applicants." 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 ofpersonal 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 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). Nevertheless, 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

Tori T. Kim, Esq. SPR17/872 Page 3 July 12,2017 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." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). 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 Globe Newspaper Co., 388 Mass. at 435 ("Not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection"); Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). You indicate "[w ]ith regard to category (i) above Gob applications), these records fall squarely within the first clause of exemption 'c."' You further assert that "[ w ]ith regard to category (ii) ( emails attaching resumes), these records also fall under the first clause of exemption 'c,' since the attached resumes contain information 'useful in making employment decisions' and are typically attached to job applications." In addition, EOEEA indicates that commentary and discussions about the candidates also fall under the first clause of Exemption (c) because they are "akin to 'internal evaluations' and 'performance assessments' that are considered core personnel information." Finally, you explain "[t]hese emails are also akin to job interview notes, which are typically included in a personnel file." 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, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of

Tori T. Kim, Esq. SPR17/872 Page 4 July 12, 2017 privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. With respect to the second clause of Exemption (c), you assert "[c]ommentary and discussions about the strengths and weaknesses of candidates implicate the privacy interests of those who were considered for hiring." You also explain that"[e ]ven public officials eventually hired by the state continue to have a privacy interest in shielding from public disclosure private discussions conducted by others about them during the application process. Arid the private interest of those individuals who are not hired is even greater." You claim that disclosing "internal discussions about a candidate who was not hired or even the identity of a person who merely applies for a job with that agency would vitiate the privacy interests of applicants to the point where many would be discouraged from applying. Such privacy interests far outweigh any public interest in disclosure, which is greatly diminished in the case of applicants who are never hired by the state." Job applicants for public positions The public can reasonably expect the disclosure of qualifications of job applicants for public 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. See Brogan, 401 Mass. at 308; 1976-77 Op. Atty Gen. Mass. 157 at 12 ("[i]t is my opinion that educational and professional training and experience are not exempted from disclosure by Exemption (c)"). Such information is routinely presented in both professional and social settings. 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 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 becomesprogressively 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). The EOEEA must provide information regarding the stages of the applicant screening process. For example, it is unclear whether any responsive records pertain to applicants that have

Tori T. Kim, Esq. SPR17/872 Page 5 July 12, 2017 reached the final stages of the applicant screening process, thereby diminishing the applicant's expectation of privacy. Further, it is unclear ifthe records contain job description information. See Wakefield, 431 Mass. at 800 (indicating that "the legislation does not exempt from disclosure a personnel record wholly unrelated to any individual's privacy interest, such as a generic job description or generic qualification requirement for a particular level of position that might constitute part of a personnel record"). In addition, it is not clear why email information, such as the date, time, and subject line of the email header, cannot be provided. With respect to resumes, the public has a legitimate interest in knowing whether public employees possess the degrees and certifications necessary to perform their jobs. See G.L. c. 30A, § 22(e ) (providing that in the context of the Open Meeting Law, any resume submitted by an applicant shall not be exempt). Accordingly, EOEEA has not met its burden to establish that the responsive records, in their entirety, may be withheld under Exemption (c). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 1O (a); Reinstein v. Police Comm'r ofBoston, 378 Mass. 281,289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted you. Conclusion Accordingly, EOEEA is ordered to provide Mr. Phillips with a 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. Sincerely, ~.~ Supervisor of Records cc: Frank Phillips