Avnish Sharma v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20181106)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7,20 18 SPR1811106 Jennifer Sulla, Esq. Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 021 14 Dear Attorney Sulla: I have received the petition of Avnish Sharma appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66, fj l0A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sharma requested "verification of the [EOIEEA, IT employee, [identified individual]. . . [wlhether [the identified individual] has certification in Oracle Database Administration called 'Oracle Certified Professional in Database Administration' and Microsoft SQL server Database Administration.. . [wlhether [the identified individual] has BS in electrical engineering and MS in computer science." The EOEEA denied his request claiming the responsive record exempt from disclosure pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, fj 7(26)(c). Requirements for an appeal Mr. Sharma is advised that the requirements for an appeal include: Such appeal shall be in writing, shall include a copy of the letter by which the request was made and, shall include a copy of all correspondence from the custodian. The Supervisor shall accept an appeal only from a person who had made his or her record request in writing. An oral request, while valid as a public record request pursuant to 950 C.M.R. 32.06(1)(a), may not be the basis of an appeal under 950 C.M.R. 32.08. See 950 C.M.R .32.08(1)(g). In the EOEEA's response to Mr. Sharma dated July 23,2018, it references a previous response provided to Mr. Sharma dated May 25,201 8. To the best of my knowledge this office was not provided with a copy of the EOEEA's May 25,201 8 response nor was it provided a copy of Mr. Sharrna's original request to the EOEEA. As indicated above, Mr. Sharma is advised that under the Public Records Law he is required to provide this office with all correspondence from the custodian and his original request in his petition for appeal. One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 * (61 7) 727-2832. Fax: (617 ) 727-5914 sec.state.ma.us/pre pre@sec.state.rna.us

Jennifer Sulla, Esq. Page 2 August 7,201 8 Tlze 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, 5 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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. No duty to answer questions; Exemption (c) In its response dated July 23,2018, the EOEEA indicates that "as for [Mr. Sharma's] request for verification, this is a request for information, not records, and is thus not covered by the requirements of the public records law, M.G.L. c. 66, 5 1 et seq." Under the Public Records Law, the EOEEA is not required to create a 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. See G. L. c. 66, 5 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 of records at the time of the request. G. L. c. 4, 5 7(26). The EOEEA additionally indicates that "as previously advised in [EOEEA3s]M ay 25th letter to [Mr. Sharma], resumes and personnel files and information of other employees are exempt from disclosure pursuant to the 'c' exemption of the public records law, M.G.L. c. 4, 5 7, cl. 26(c). The Supreme Judicial Court has held that 'personnel and medical files or information,' which fall under the first clause of the 'c' exemption, is 'absolutely exempt from disclosure.' see Wakefield Teachers Ass'n v. School Committee of Wakefield, 43 1 Mass. 792,799 (2000); also Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427,438 (1983) ('medical and personnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual'). Personnel files include those 'created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentations, payroll records, injury reports and performance assessments'. Wakefield Teachers Ass'n, 43 1 Mass 792 at 799 (citations omitted)."

Jennifer Sulla, Esq. Page 3 August 7,2018 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 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 creates a categorical exemption for personnel information that relates to an Id. identifiable individual and is of a "personal nature." at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in malting 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). Waltefield Teachers Ass'n v. School Cornrn., 43 1 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-011 84-A (June 14,2013). 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 (1 979). 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 v. School Comm. of Westport, 401 Mass. 306,309 (1987). In Mr. Sharma's petition for appeal, he indicates that "[tlhis information is already shared in the [identified individual] affidavit shared by [the Massachusetts Commission Against Discrimination] which is a public record." Mr. Sharma is advised that the exemption for "personnel [file] or information" is not dependent upon whether the same information may be available, or discernible, through alternative sources. Rather, the nature and character of the document determines whether it is "personnel [file] or information." See Worcester Telegram & Gazette Corp., 436 Mass. at 386. Put differently, the same information may simultaneously be contained in a public record and in exempt "personnel [file] or information." Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 10 (2003).

Jennifer Sulla, Esq. Page 4 August 7,201 8 Based on the EOEEA's response it is unclear whether it possesses responsive records. The EOEEA must provide a response to Mr. Sharma that provides additional information regarding whether the EOEEA possesses responsive records. See G. L. c. 66, 5 lO(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based.. ." ); Flatlev, 4 19 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). Additionally, the EOEEA's response does not specifically explain how the requested information falls within the core categories of personnel file information described in Wakefield, and how these records were useful in making employment decisions regarding an employee, and are exempt under Exemption (c). Wakefield, 43 1 Mass. at 798. Given that the EOEEA has not demonstrated that the records, in their entirety, are personnel file information that may be withheld under the first clause of Exemption (c), I find that the EOEEA has not met its burden of specificity in claiming Exemption (c). Order Accordingly, the EOEEA is ordered to provide Mr. Sharma with a response to his request, provided in a manner 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 to send an electronic copy of this response to this office at pre@,sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Avnish Sharma