Dhruba Sen v. Framingham, Town of - Human Resources Department (SPR 20180279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 20, 2018 SPRlS/279 Susan Embree Department RAO Human Resources Department City of Framingham 150 Concord Street Framingham, MA 01702 Dear Ms. Embree: I have received the petition of Dhruba Sen appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sen requested five categories ofrecords regarding the appointment of the Senior Adviser-External Affairs and Senior Adviser-Policy in the Mayor's Office. In an initial response dated February 27, 2018, the City provided certain records with portions redacted. 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, § 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. 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

Susan Embree SPR18/279 Page 2 March 20, 2018 Current appeal Provision ofr esponsive records In his appeal petition dated March 2, 2018, Mr. Sen indicates that he believes additional records exist and objects to the amount of redactions within responsive resumes provided to him. In a response dated March 16, 2018, Attorney Christopher Brown, on behalf of the City, indicates "[w]hile Mr. Sen is correct that there were additional communications between the HR Director and the Mayor as part of the hiring process for these positions, these communications occurred either via phone call or in person. There are no further records responsive to this request." Attorney Brown also notes in a March 19, 2018 email that "there were people that applied for both positions, hence the difference between the materials and your understanding of the number of applicants. Everything was provided to you in the original response." Mr. Sen sent an email to the City on March 19th seeking clarification on certain matters. In a separate email on March 19th, you explain "[t]here were nine (9) applicants for the Sr. Advisor on External Affairs position. There were five (5) applicants for the Sr. Policy Advisor position. The first applicant in the External Affairs pool is the same as the second applicant in the Policy pool. The sixth applicant in the External Affairs pool is the same as the third applicant in the Policy pool." You also attach responsive records again and confirm that "[a]ll cover letters and resumes received for these two (2) positions have been provided to you. There are no further records responsive to your request, and specifically, there are no cover letters from any applicant' ... which specifically states that they are 'also' applying for the policy adviser position ... ' (in reference to your email below)." 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 ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). I find that in light of the City's March 16th and March 19th responses, the City has met its burden to show that it provided all responsive records. Redactions within resumes In an email on March 16th, the City provided additional documents and explains "attached are the materials for the candidates selected for the two senior policy advisor positions responsive to your public records request 2018-2536. The home address, personal telephone and personal email addresses have been redacted pursuant to G.L. c. 4, s. 7, cl. 26t\ exemption (o )." With respect to the redacted resumes for applicants that were not selected, Attorney Brown notes the City is willing to voluntarily provide the unredacted versions of these records to this office for in camera review. I find that an in camera review of the responsive resumes would facilitate a determination as to the applicability of exemption claims made by the City. See 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.

Susan Embree SPR18/279 Page 3 March 20, 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. See 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. This office will coordinate with the City to obtain umedacted copies of the responsive resumes for in camera inspection without delay. The City may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Dhruba Sen Christopher L. Brown, Esq.