Debra Falzoi v. Medford, City of - Housing Authority (SPR 20190048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murra Supervisor of &cords January 23, 2019 SPR19/048 Jeffrey L. Driscoll Executive Director Medford Housing Authority 121 Riverside Avenue Medford, MA 0215 5 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, on September 4, 2018, Ms. Falzoi requested, "all cover letters, references, and resumes for all Section 8 employees hired since 2014." Previous appeal-SPR18/1752 The requested records were the subject of a previous appeal. See 18/1752 Determination of the Supervisor of Records (Supervisor) (December 3, 2018). In my December 3rd determination, I found that the Authority had 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 particular employee, which may be properly withheld from disclosure under the personnel clause of Exemption (c). Therefore, I ordered the Authority to review the records, redact where necessary and provide Ms. Falzoi with the responsive records. On December 17, 2018, the Authority, through its Legal Counsel Daniel C. Brown of Feeley & Brown, P. C., provided Ms. Falzoi with the cover letters and resumes, but withheld an identified individual's employment references, in their entirety, under Exemption (c). Current appeal - SPRJ 9/048 After the Authority withheld an identified individual's employment references under Exemption ( c ), Ms. Falzoi appealed, seeking the references. As a result, the current appeal, SPRl 9/048, was opened. 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 L. Driscoll SPR19/048 Page 2 January 23, 2019 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, § lO(b)(iv) (written response must "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 ... "); 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). G. L. c. 66, § 3A The Legislature has enacted G. L. c. 66, § 3A: Recommendations for employment submitted in support of candidates hired by the commonwealth; use of recommendation by hiring authority. Section 3A states: Recommendations for employment submitted in support of candidates who are hired by the commonwealth, or any political subdivision of the commonwealth, in the position to which the recommendations were applicable, shall be considered public records under section 7 of chapter 4 and this chapter; provided, however that this shall not apply to internal communications. Recommendations for employment submitted in support of candidates applying for employment by the commonwealth, or any political subdivision of the commonwealth, shall not be considered by a hiring authority until the applicant has met all other qualifications and requirements for the position to be filled; provided, however, that a hiring authority may, in accordance with said agency's regular practice for conducting reference checks, contact and speak with a reference provided to it by a candidate for employment, or contact and speak with any person who has submitted a written recommendation on behalf of a candidate for employment with said agency. G. L. C. 66, § 3A. The Authority is advised that to the extent that G. L. c. 66, § 3A applies to the employment references, those records would be subject to disclosure under the Public Records Law.

Jeffrey L. Driscoll SPR19/048 Page 3 January 23, 2019 Conclusion Accordingly, the Authority is ordered to provide Ms. Falzoi with the requested references or a response explaining why G. L. c. 66, § 3A does not apply to these requested references. The response must be provided 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. I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Debra Falzoi Daniel C. Brown, Esq., Feeley & Brown, P. C.