John P. Seferiadis v. Massachusetts Bay Transportation Authority (SPR 20171754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 8, 2018 SPR17/1754 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02114 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, § lOA; 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, 201 7 response, the MB TA · 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. Prior appeal The requested records were the subject of a prior appeal. See SPRl 7 /1502 Determination of the Supervisor of Records (Supervisor) (November 3, 2017). In the November 3rd determination, I found that based on the factors in PETA, the MBTA had met its burden to show that the candidates that were not hired have a privacy interest in these matters. See PETA , 4 77 Mass. at 292. However, based on the balancing test for Exemption (c), 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. I determined that it was unclear why information such as the experience and educational and professional training of the applicants could not be provided to shed hght on the applicant pool while protecting privacy interests. Accordingly, the MBTA had not met its burden, and the MBTA was asked to provide Mr. Seferiadis with a supplemental response consistent with the November 3rd determination. 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 A. Ciollo, Esq. SPRl 7/1754 Page 2 January 8, 2018 On December 1s i, the MBTA provided the supplemental response. Unsatisfied with the MBTA 's response, Mr. Seferiadis petitioned this office and this appeal 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 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, § 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). MBTA 's December 1st response In the November 3rd determination, the MBTA was advised that 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). · Therefore, the MBTA was asked to explain in a supplemental response why the resumes and/or CV's of the individuals who interviewed for the Civil Engineer and Structural Engineer positions cannot be redacted to allow the disclosure of the applicants' experience and educational and professional training. The MBTA's December 1st supplemental response states, "[i]n the opinion of the MBTA, there is no redaction that would adequately protect these individuals' privacy interests. Given their unique positions, revealing any material information from their resumes, such as education and experience, would result in being able to identify those individuals. Therefore, providing educational and professional experience is tantamount to providing the finalist resumes un redacted." The MBTA concludes that it may withhold the resumes in their entirety pursuant to Exemption ( c ). I find that the MBTA has not supported its Exemption ( c) claim to withhold the resumes in their entirety. In camera review In order to facilitate a determination as to the applicability of Exemption ( c) claim made by the MBTA to withhold the resumes in their entirety, the MBTA should provide this office with un-redacted copies of the responsive resumes for an in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record.

Julie A. Ciollo, Esq. SPRl 7/1754 Page 3 January 8, 2018 The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that.utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The MBTA may provide this office with a further explanation of its position regarding the applicability of Exemption ( c) to the responsive records. However, please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the MBTA is hereby ordered to provide this office with un-redacted copies of the responsive records without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Seferiadis