John P. Seferiadis v. Massachusetts Bay Transportation Authority (SPR 20171502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 3, 2017 SPR17/1502 Julie Ciollo, Esq. Assistant General Counsel/RAO Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of John P. Seferiadis appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Seferiadis requested a copy ofrecords that describe and state the qualifications of all job applicants that were invited for interviews by the Human Resources Department at the MBTA for the civil engineer and structural engineer positions for the Green Line Extension project. In a September 13, 2017 response, the MBTA informed Mr. Seferiadis that it is in possession of resumes and CV s of interviewed applicants; however, the MBTA is withholding the records pursuant to the·second clause of Exemption (c) of the Public Records Law. Mr. Seferiadis appealed the September 13th response. 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, inade or received by any officer or employee of any town of the Commonwealth, unle'ss 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. 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. 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

Julie Ciollo, Esq. SPRl 7/1502 Page 2 November 3, 2017 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. Status of the requester and reason for the request Mr. Seferiadis informed this office that his specific request for applicant employment qualifications for the individuals that the MBTA interviewed pertains to a case involving the Massachusetts Commission Against Discrimination (MCAD). The Public Records Law does not distinguish between individuals seeking public records. Mr. Seferiadis's status as a claimant with MCAD does not provide him any greater right of access to public records than any other person. See G. L. c. 66, § 10( a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, his status shall not play a part in whether the records should be released to the public. Furthermore, the Public Records Law appeal process shall not apply to situations in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(l)(a). Whereas, the records may be directly related to Mr. Seferiadis's claim being reviewed by MCAD, he may have a unique right of access through either the administrative discovery process with MCAD or the judiciary. Exemption (c) The MBTA informed Mr. Seferiadis that it is withholding the resumes and CVs in their entirety pursuant to the second clause of Exemption (c). 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). Only the second clause of Exemption ( c) is applicable to this determination. 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.

Julie Ciollo, Esq. SPRl 7/1502 Page 3 November 3, 2017 The second clause of Exemption ( c) 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 privacy, the private interest in preventing disclosure must yield. PETA , 4 77 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. The MBTA has stated that the individuals who were interviewed for the civil and structural engineer positions have a privacy interest in the disclosure of their applicant status that outweighs the public interest in obtaining copies of their resumes. Additionally, the MBIA claims that job applicants, including persons then holding positions at other firms and institutions, have legitimate privacy concerns during the recruitment process, in particular, about the disclosure of the very fact that they have applied for a new job, a fact which likely would affect their existing employment relationships if disclosed. Furthermore, the MBIA states that the interviewees provided their resumes to the MBIA in confidence, with the express understanding that those documents, and their status as applicants, would remain private unless they reached agreement with the MBIA for new employment. To do otherwise, the MBTA states that this would be detrimental to future hiring options as well as applicants who do not wish to risk exposure when considering a job change. The MBTA posits that disclosing the resumes would only serve to embarrass these individuals and cause harm to their existing employment relationships. Considering the factors in the PETA decision, I find the MBIA 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 of any invasion of privacy, the private interest in preventing disclosure must yield. Id. 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. In this particular case, the public has an

Julie Ciollo, Esq. SPR17/1502 Page 4 November 3, 2017 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 ). It is unclear why information, such as educational and professional training and experience, cannot be provided 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, § lO(a). 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). I find that the MBTA's response did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). It is my understanding that you had a discussion with an attorney in the Public Records Division on November 1st, and that you indicated that you would provide a supplemental response. The response must be prepared in a manner consistent with this determination regarding job applicants. Conclusion Accordingly, whereas the MBIA will provide a supplemental response to Mr. Seferiadis regarding his request, I will consider this appeal closed with the proviso that the response is provided in a maimer 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 tg send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Seferiadis 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: John P. Seferdiadis