Deborah Butler v. Framingham, City of - Mayor's Office (SPR 20181624)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 20, 2017 SPRlS/1624 Nichol Figueiredo Records Access Officer City of Framingham - Mayor's Office 150 Concord Street, Room B-37 Framingham, MA O1 702 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 19, 2018, Ms. Butler requested "[a]ll applications/emails/ letters/submissions submitted to date for appointment to the Veterans Council." Previous appeals The requested record was the subject of previous appeals. See SPRl 8/1179 Determination of the Supervisor of Records (August 23, 2018) and SPR18/1363 Determination of the Supervisor of Records (September 25, 2018). In my September 25th determination, I found that the City had not met its burden to withhold portions of the responsive records under Exemption (c) of the Public Records Law. Accordingly, I ordered the City to review the records, redact where necessary, and provide Ms. Butler with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the September 25th determination, the City provided a response on October 19, 2018, that provides additional information regarding its position to withhold four applications from disclosure. The City claims it redacted the records pursuant to Exemption ( c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the City's response, Ms. Butler petitioned this office and this appeal, SPR18/1624, 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 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

Nichol Figueiredo SPR18/1624 Page 2 November 20, 2018 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, § lO(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, § 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 City's October 19th response In its October 19, 2018 response, the City claims that it withheld the four applications because "these individuals did not advance beyond the preliminary screening when they interviewed for the position." The City explains that "the applicants who have reached the level of semi-finalist became elevated to a greater position of public trust and would expect open and public discussion of [their] candidacy whereas the identities of the other four should remain private, so that [the individual's] relationship to their employer is not jeopardized." Citing the language of Exemption (c), the City states that "[t]he names of the four applicants, including [Ms. Butler's] were withheld as to avoid any breach of 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 G. L. c. 4, § 7(26)(c). Second clause ofE xemption (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 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis.

Nichol Figueiredo SPR18/1624 Page 3 November 20, 2018 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: (1) 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 Agric. 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 disputes and reputation. Id. 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 in a law-abiding and efficient manner. Id. at 292. Applications pertaining to candidates not hired In my September 25th determination, the City 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). As such, based on its response, it remains 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. Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). See G. L. c. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (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 the records, redact where necessary, and provide Ms. Butler with responsive records, 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.

Nichol Figueiredo SPR18/1624 Page 4 November 20, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Deborah Butler