Don Kempner Warner Saklad v. Cambridge, City of - Office of the City Solicitor (SPR 20180084)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

January 31, 2018 SPR18/084

Jennifer Simpson

City of Cambridge ~ Office of the City Solicitor 795 Massachusetts Avenue, Room 320 Cambridge, MA 02139

Dear Ms. Simpson:

[ have received the petition of Don Saklad appealing the response of the City of Cambridge Office of the City Solicitor (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 20, 2017, Mr. Saklad requested “a) all information/details about [an identified Appointee] of our Cambridge Broadband Task Force.” Mr. Saklad noted that this information should include:

“b) the Appointee Application to the Task Force. c) the Appointee profile/background/qualifications sheets. d) the Appointee confirmation sheets/documents/letter.”

_ Previous appeal

This request was the subject of a previous appeal. See SPR17/1729 Determination of the Supervisor of Records (January 2, 2018). I closed SPRI7/1729 with the proviso that the City provide Mr. Saklad with a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations.

After the January 2, 2017 determination, the City provided a response dated January 19, 2018, in which it confirms it has no additional responsive records. The City subsequently provided a supplemental response dated January 30, 2018, claiming Exemption (c) of the Public Records Law to withhold employee applications. G. L. c. 4, § 7(26)(c). Unsatisfied with the

City’s response, Mr. Saklad petitioned this office and this appeal, SPRI8/084, was opened as a result.

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

Jennifer Simpson SPR18/084 Page 2 January 31, 2018

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).

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.

The City’s January 9" response

In its January 9" response, the City indicated that it “does not possess any further non- exempt responsive documents for this request. The City produced information regarding other Task Force members in response to public records requests related to those members but does not have any further non-exempt information to this request.”

The City’s January 30" supplemental response

Subsequent to the opening of this appeal, the City provided a supplemental response on January 30, 2018. In the supplemental response, the City cited a Conflicts of Interest Law statute, G. L. c. 268A, § 1(g), which defines a “municipal employee” as “[a] person performing services for or holding an office, position, employment or membership in a municipal agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part time, intermittent, or consultant basis, .. .” As such, the City indicated that “members of a municipal task force should be considered municipal employees for purposes of the Public Records Law.”

The City then indicated that it withheld employment applications pursuant to Exemption (c) of the Public Records Law. Citing to Wakefield, the City indicated that “the application letter of an appointee to the Cambridge Broadband Task Force is a personnel record that is subject to the protections of Exemption (c).” The City reiterated that “it does not possess, nor is it withholding, any other responsive records, except for the application letter.”

Jennifer Simpson SPR18/084 Page 3 January 31, 2018

Exemption (c)

The City indicated it withheld employment applications pursuant to Exemption (c) of the Public Records Law.

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). First clause of Exemption (c) — personnel

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, 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). Asa 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 v. School Comm. of Westport, 401 Mass. 306, 309 (1987).

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 Wakefield, the Court found that at a minimum, personnel information includes, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield, 431 Mass. at 798. These, the Court concluded “constitute the core categories of personnel information that are

Jennifer Simpson SPR18/084 Page 4 January 31, 2018

useful in making employment decisions regarding an employee and may be properly withheld from disclosure under Exemption (c).” Id. at 798-99. Consequently, because this employment application of the Cambridge Broadband Task Force member constitutes one of the core

categories of personnel information determined to be exempt as personnel, I find the City acted properly in withholding these records.

No duty to create records

Under the Public Records Law, the City is not required to-create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions, G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26).

Conclusion

Accordingly, whereas the City explains it does not possess any “further non-exempt responsive documents” for this request and I find the City may permissibly withhold the

employment application pursuant to Exemption (c), I will consider this administrative appeal closed.

Recon

Rebecca S. feleeco. Supervisor of Records

cc: Don Saklad