David Brown v. Revere, City of - Office of the City Clerk (SPR 20171546)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 14, 2017 SPR17/1546 Ashley E. Melnik City of Revere - Office of the City Clerk 281 Broadway Revere, MA 02151 Dear Ms. Melnik: I have received the petition of David Brown appealing the response of the City of Revere Office of the City Clerk (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 6, 2017, Mr. Brown requested a "copy of the recently completed report from assessment center used for police chief." Mr. Brown also requested "all records associated with the assessment center to include the contract or proposal or other method for securing the services of the company to include the cost and terms of the services provided along with the questions and the answers provided by each person undergoing the test along with recordings ( audio and video) made during the test." Previous appeal This request was the subject of a previous appeal. See SPRl 7 /1240 Determination of the Supervisor of Records (September 22, 2017). I closed the appeal with the proviso that the Department provide a supplemental response in a manner consistent with the order, the Public Records Law, and its Regulations within ten business days. Following the Determination, the City provided a response dated October 11, 2017, in which it continues to claim Exemption ( c) of the Public Records Law, to redact the names of City employees who were candidates for the police chief position. G. L. c. 4, § 7(26)(c). Unsatisfied with the City's response, Mr. Brown petitioned this office and this appeal, SPRl 7/1546, 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 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

Ashley E. Melnik SPRl 7/1546 Page2 November 14, 2017 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, § 1 O(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, § 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. The City's October llh response In its October 11th response, the City reiterated that "the names of candidates within the report are not public record and exempt from disclosure in accordance Mass. Gen. Laws ch. 4, § 7(26)(c) because the report is a work evaluation. According to Freedom ofI nformation and Public Records Law in Massachusetts, Murray (2012), 'A records custodian will not be required to disclose ordinary employee work evaluations or employment applications. The release of these types of records may make it difficult for a public entity to operate as an employer; therefore Exemption ( c) may be applied to withhold the release of these types of personnel documents' (pg. 27). The release of names of the candidates contained within the work evaluation would discourage police officers from applying for the position of Chief of Police in the future. " Exemption (c) In the City's October 11th response, it indicated it redacted the names of candidates within the assessment report under the first clause of Exemption ( c) of the Public Records Law. 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). The

Ashley E. Melnik SPRl 7/1546 Page 3 November 14, 2017 first clause, relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). 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). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). 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 Brogan, 401 Mass. at 306,309. Although public employees have a diminished expectation of privacy in matters relating to their official responsibilities, some information concerning a public employee's employment has been found to be sufficiently personal to be exempt from mandatory disclosure. In Connolly, the Court found that employment information that is specifically evaluative in nature constitutes "personnel information" exempt from disclosure under the first clause of Exemption ( c) . Connolly v. Bromery, 15 Mass. App. Ct. 661,664 (1983). In the Department's July 20, 2017 response to Mr. Brown, the Department provided responsive records but redacted the names of the candidates. Although the names themselves are not evaluative in nature, in conjunction with the fact that the scores have already been provided, they do constitute evaluative information and therefore may be withheld under the personnel clause of Exemption (c). I understand Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, whereas I find the City may permissibly withhold the names of City employee candidates for the chief of police position from the responsive records, I will consider this administrative appeal closed. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: David Brown