Frank Phillips v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20171039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 14, 2017 SPR17/1039 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, § lOA; 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 appeals This request was the subject of previous appeals. See SPR17/728 Determination of the Supervisor of Records (June 9, 2017); SPR17/872 Determination ofthe Supervisor of Records (July 12, 20 17). I closed SPR17/ 872 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 July 28, 2017 in which it provided a chart displaying the name, job title, degrees, and certifications of candidates that are currently employed by EOEEA or its agencies. EOEEA denied access to other responsive records under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). Mr. Phillips appealed and SPR171 1039 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, § lOA( d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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. SPR17/1039 Page 2 August 14, 2017 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(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. Current appeal In EOEEA's July 28th response you explain that the records at issue fall into two categories: (1) copies of job applications submitted through the state's "MassCareers" website and forwarded to Alexandra Cahill; and (2) emails sent to Ms. Cahill attaching resumes of potential job applicants. EOEEA provides that with respect to category 1, "we continue to assert that job applications fall squarely within the first clause of exemption 'c,' covering 'personnel and medical files or information."' With respect to category 2, EOEEA provided a chart displaying the name, job title, degrees, and certifications of candidates that are currently employed by EOEEA or its agencies. In his appeal petition, Mr. Phillips objects to EOEEA's response regarding applications. He also notes that he is "looking for the discussions between Cahill and Beaton that went on when making hires. If there is an exemption that is part of the emails, that part of the discussion or document can be redacted." 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).

Tori T. Kim, Esq. SPR17/1039 Page 3 August 14, 2017 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 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. ofWestport, 401 Mass. 306, 309 (1987). 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

Tori T. Kim, Esq. SPR17/1039 Page 4 August 14, 2017 disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar ofMotor 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 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. Emails and resumes pertaining to current and former employees Although EOEEA provides a chart displaying the name, job title, degrees, and certifications of candidates that are currently employed by EOEEA or its agencies, it is unclear how segregable portions of the underlying responsive records, such as emails and resumes sent to Ms. Cahill, cannot be provided. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). In particular, it is not clear why information such as the date, time, subject line ofthe email headers, and non-exempt portions of the body of emails as well as resumes, cannot be provided. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Emails and resumes pertaining to candidates not hired The personnel clause of Exemption (c) applies to certain information related to a particular employee. See Wakefield, 431 Mass. at 798. Since candidates not hired by EOEEA did not become employees, the personnel clause will not operate to withhold information of these individuals. However, a general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his or her identity, thus, certain information may be withheld pursuant to the second clause of Exemption (c). Attorney Gen. v. School Comm. of Northampton, 375 Mass. 127, 132 n.5 (1978). In a previous response dated June 26, 2017 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." Considering the factors in the PETA decision, I find EOEEA has met its burden to show that the candidates that were not hired have a privacy interest in these matters. See PETA , 477 Mass. at 292. However, as described above, the balancing test for Exemption (c) provides that where the public interest in obtaining the requested information substantially outweighs the seriousness

Tori T. Kim, Esq. SPR17/1039 Page 5 August 14, 2017 of any invasion of privacy, the private interest in preventing disclosure must yield. I d. 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. The public has an interest in transparency in the process of hiring, managing and compensating public employees. See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 28 Mass. L. Rep. 499 (2011). As such, it is unclear why EOEEA cannot redact identifying information and provide remaining information, such as educational and professional training and experience, in order to shed light on the applicant pool while also protecting privacy interests. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66; § 10(a). Applications Although EOEEA continues to assert that job applications fall squarely within the first clause of Exemption (c), access to a record pursuant to the Public Records Law rests on the content of the record. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Further, the scope ofExemption (c) turns on the character ofthe information sought. Brogan, 401 Mass. 306, 309; see also Boston Globe Media Partners, LLC. v. City of Boston, Suffolk Sup. Ct. Civil Action No. 2014-03952 (May 9, 2016) (finding that race and ethnicity information does notfall within the personnel clause ofExemption (c)). It is not clear what type of information is found in the responsive applications. For example, EOEEA has not established whether the applications are comprised of resumes, or information that would otherwise be subject to disclosure. 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"). EOEEA must provide information regarding this matter. Any other additional records With respect to the portion of Mr. Phillips' request pertaining to discussions between Ms. Cahill and Secretary Beaton "that went on when making hires," it is unclear whether it possesses these responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). EOEEA must confirm whether it possesses such records. Again, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I understand a Public Records Division staff attorney contacted you.

Tori T. Kim, Esq. SPR17/1039 Page 6 August 14, 2017 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, Rebecca S. Murray Supervisor of Records cc: Frank Phillips