Debra Falzoi v. Medford, City of - Housing Authority (SPR 20181752)

The Commo1nvealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2018 SPRlS/1752 Jeffrey L. Driscoll Executive Director Medford Housing Authority 121 Riverside Avenue Medford, MA 02155 Dear Mr. Driscoll: I have received the petition of Debra Falzoi appealing the response of the Medford Housing Authority (Authority) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Falzoi requested a copy of: "all cover letters, references and resumes for all Section 8 employees hired since 2014." In the Authority's September 14, 2018 response, it denied Ms. Falzoi's request in its entirety, asse1ting, "[p]lease be informed that pursuant to G. L. c. 4, § 7(26)(c) the [requested] records are not public records and therefore your request for copies of said records is hereby denied." As a result, Ms. Falzoi petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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). E-..:emption (c) Exemption (c) applies to: personnel and medical files or infonnation;·also any other materials or data relating to a specifically named individual, the disclosure of which may constitute 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

-- ---Jeffrey-k-E>riseoll-----------~SPJHS/-1-7-51------------ Page 2 December 3, 2018 an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). 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 persom1el 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 paiiicular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 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. 11-01184-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 Publ'g Co. v. Register of Probate for Norfolk Cnty., 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 mam1er." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). 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). A personnel file or information "is not limited to nor does it extend to, all 'files or information' that are located physically in an individual employee's personnel file." Wakefield, 431 Mass. at 797 n. 13; see also Globe Nev,,spaper Co., 388 Mass. at 435 (not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection). I find the Authority has not met its burden to show how the cover letters, resumes and references of the Authority's employees constitute one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a patiicular employee, which may be properly withheld from disclosure under the personnel clause of Exemption (c). See Worcester, 58 Mass. App. Ct. at 5; Wakefield, 431 Mass. at 798. Burdeu ofs pecificity i11 responding and claiming exemptions; du(v to segregate It is unclear what records requested by Ms. Falzoi the Authority possesses that are

____J effrey_L.-Driscoll ___________s ERl8iL752---------------• Page 3 Dece~nber 3, 2018 responsive to this request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or p01iions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). If the Authority is withholding records, it must identify what type of record(s) it has in its possession that are responsive and that the Authority withheld. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Further, the Authority must produce any non-exempt, segregable po11ions of the public records. G. L. c. 66, § lO(a). It is my understanding that a Public Records Division staff attorney contacted you regarding the request and this appeal; however, was unable to connect with you directly. Orde1· Given that I find the Authority has not met its burden in responding to Ms. Falzoi's request, the Authority is ordered to review the records, redact where necessary, and provide the records to Ms. Falzoi, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Debra Falzoi