Deborah Butler v. Framingham, City of - Mayor's Office (SPR 20181363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 25,2018 SPR1811363 Nichol Figueiredo Records Access Officer City of Framingham Framingham, MA 0 1702 Dear Ms. Figueiredo: I have received the petition of Deborah Butler appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 19,201 8 , Ms. Butler requested "[all1 applications/emails/ letters/submissions submitted to date for appointment to the Veterans Council." Previous appeal The requested record was the subject of a previous appeal. See SPRl811179 Determination of the Supervisor of Records (August 23,2018). In my August 23rdd etermination, finding that the City has not met its burden to withhold responsive records pursuant to Exemption (c) of the Public Records Law, I ordered the City to provide Ms. Butler with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the August 23rd determination, the City provided a response on September 11, 201 8, which included certain records in redacted form. The City claims it redacted records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, 5 7(26)(c). Unsatisfied with the City's response, Ms. Butler petitioned this office and this appeal, SPR1811363, was opened as a result. It appears Ms. Butler is only appealing the City's withholding of four applications from disclosure. 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, 5 1O A(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 One Ashburton Place, Room 171 9, Boston, Massachusetts 0210 8 (61 7) 727-2832. Fax: (617 ) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Nichol Figueiredo Page 2 September 25,201 8 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, $ lO(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, $ lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's September llthre sponse In its September 1 1,2018 response, the City indicates that it attached five submissions for appointment to the Framingham Veteran's Council. The City explains that it did not redact the names and addresses of these five applicants because ". . . they are the only individuals who advanced beyond the preliminary screening. These applicants who have reached the level of semi-finalist have become elevated to a greater position of public trust and should expect open and public discussion of [their] candidacy." The City further indicates that "[tlhe private email address and mobile phone numbers of the listed applicants have been redacted pursuant to Exemption (c) . . ." The City explains that "[tlhe disclosure of an individual's private contact information does not contribute to the general public's interest for this information and would breach personal privacy." Exemption (c) 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 Second clause of Exemption (c) -privacy Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432-34 (1983). Only the second clause of Exemption (c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9

Nichol Figueiredo Page 3 September 25,2018 (1984); Attorney Gen. v. Assistant Cornrn'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (I) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Anric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that 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. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties Id. in a law-abiding and efficient manner. at 292. Applications pertaining to candidates not hired The Supreme Judicial Court has held that the public can reasonably expect the disclosure of qualifications of job applicants for public employment as well as those of public employees. Attorney Gen. v. School Comm. Of Northampton, 375 Mass. 127, 130 (1978). Applicants who fail to advance beyond the preliminary screening stage maintains an undiminished privacy interest in his or her identity, thus, certain information may be withheld pursuant to the second clause of Exemption (c). Id. at 132 n.5. However, as described above, the balancing test for Exemption (c) provides that where the public interest in obtaining the requested information substantially outweighs the seriousness Id. of any invasion of privacy, the private interest in preventing disclosure must yield. at 291. The public has a recognized interest in knowing whether public servants are carrying out their Id. duties in a law-abiding and efficient manner. at 292. Further, 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 (201 1). As such, it is unclear why the City cannot redact identifying information from the responsive records and provide the remaining information, such as educational and professional training and experience, in order to shed light on the applicant pool while also protecting privacy interests. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, $ 10(a). See G. L, c. 66, 8 10(a); Reinstein v. Police Comm'r of Boston,

Nichol Figueiredo Page 4 September 25,20 18 378 Mass. 281,289-290 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the City is ordered to review, redact where necessary, and provide Ms. Butler with responsive records, provided in a manner consistent with this order, the Public Records Law, 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: Deborah Butler