Avnish Sharma v. Executive Office of Energy and Environmental Affairs (SPR 20190141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

February 5, 2019 SPR19/141

Jennifer Sulla, Esq.

Deputy General Counsel

Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900

Boston, MA 02114

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, § 10A; see also 950 C.MLR. 32.08(1). Specifically, Mr. Sharma requested the complete information of identified employees regarding certifications, education and experience.

Accompanying a December 20, 2018 response, EOEEA provided Mr. Sharma with the certifications and education of the identified employees, but withheld information pertaining to the identified employees’ work experience under Exemption (c). As a result of EOEEA’s withholding of the identified employees’ work experience under Exemption (c), on January 22,

2019, Mr. Sharma petitioned the Supervisor of Records (Supervisor), and this appeal was opened.

In a previous email to EOEFA, Mr. Sharma indicated, “[w]hether the candidate is qualified to work at particular position depends on the relevant work experience.”

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, § 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, § 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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends

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

Jennifer Sulla, Esq. SPR19/141 Page 2 February 5, 2019

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).

Exemption (c) Exemption (c) applies to:

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. Lc. 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 personnel 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 particular 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 manner.” Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). Asa 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 response to Mr. Sharma’s request for one of the identified employees’ resume, EOEEA provided him with this employee’s certifications and degrees. A review of your December 20" response reiterates the same information, and included the academic degrees held by 4 of the identified employees. EOEEA did not provide any certification information of the 4 identified employees. It is unclear whether the certification information is in possession, custody

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and control of EOEEA. Therefore, EOEEA must provide the information or a response to explain whether the information exists.

After receipt of your December 20" provision of the certification and education of the

employees, on December 24, 2018, Mr. Sharma sent an email to EOEEA requesting, “the work experience of these candidates.”

The question of whether professional vocational qualifications and training may be exempted from disclosure pursuant to Exemption (c) of the Public Records Law is well settled. Massachusetts Courts have consistently recognized the public's interest in the qualifications and performance of government employees. John J. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 863-64 (1975); Rotkiewicz v. Sadowsky, 431 Mass. 748, 753 (2000); Daniel Lynch v. News Group Boston, Inc., 1 Mass. L. Rep. 9, 4 (1993); Charles Mazetis v. The Enterprise Publishing Co., 22 Mass. L. Rep. 380, 10 (2007).

The fact that these records or information may be held in a personnel file or listed on a resume does not render the information exempt as personnel records under Exemption (c). The public has a paramount interest in gauging whether an individual has the requisite education and training for the particular position for which he or she was hired. In its December 20" response, EOEEA did not provide the identified employees’ employment/job history it has in its possession or specify how Exemption (c) would allow EOEEA to withhold the job history of these employees in its entirety under the first clause of Exemption (c).

In a telephone conversation, a Public Records Division staff attorney learned that EOEEA did not provide a response to the December 24" email because it did not realize that the email was a request for public records.

Conclusion

Accordingly, EQEEA is ordered to provide Mr. Sharma with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten (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.

Alsen.

“ecco. S. Murray Supervisor of Records

ec: Mr. Avnish Sharma