Avnish Sharma v. Executive Office of Energy and Environmental Affairs (SPR 20190469)

The Comn1onwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 14, 2019 SPR19/469 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 A vnish Sharma appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Sharma requested the complete information of identified employees regarding certifications, education and experience. Prior appeal The requested work experience or job history of identified employees was the subject of a prior appeal. See SPR19/141 Determination of the Supervisor of Records (Supervisor) (February 5, 2019). On December 20, 2018, the 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 the EOEEA's withholding of the identified employees' work experience under Exemption (c), Mr. Sharma petitioned the Supervisor and SPRl 9/141 was opened. In my February 5, 2019 determination, having found that the EOEEA did not meet its burden of specificity in withholding the work experience of the identified employees, I ordered the EOEEA to provide Mr. Sharma with a response to support its Exemption ( c) claim to withhold the information. The EOEEA provided a February 22, 2019 response to my February 5th order, continuing to withhold the employees' work experience under the first clause of Exemption (c). As a result, Mr. Sharma petitioned the Supervisor and the current appeal 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

Jennifer Sulla, Esq. SPR19/469 Page2 March 14, 2019 The Public Records Law I he 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, § 1O (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). The EOEEA's February 25, 2019 response 111 In its February 25 response, the EOEEA continues to assert that the work experience or job history of the identified employees may be withheld, in its entirety, as personnel information that is exempt from public disclosure under the first clause of Exemption (c ) of the Public Records Law. 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. 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 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

Jennifer Sulla, Esq. SPR19/469 Page 3 March 14, 2019 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). 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). 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). In its December 20th 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). On December 24th, Mr. Sharma sent an email to EOEEA requesting the work experience of these candidates. In your February 25th response pertaining to Mr. Sharma's request for the work experience of five identified employees, you state, " ... we acknowledge that [EOEEA] is in possession of the five identified employees, and that these resumes ( as with all resumes) contain these employees' job histories. These resumes were included in the employment applications submitted by these individuals during the hiring process, and now reside in the personnel files of these employees." The EOEEA is advised that while the requested records or information pertaining to the employees' work experience 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 interest in gauging whether an individual has the requisite education, training and work experience necessary for the particular position for which he or she was hired. The EOEEA continues to assert, " ... employee resumes in their entirety are covered by the first clause of "c" exemption to the [P]ublic [R]ecords [L]aw, which shields from disclosure any "personnel. .. files or information." Citing G. L. c. 4, § 7(26)(c). You assert, "[w]hile resumes and job histories are not specifically listed in Wakefield, they are often, if not always, contained

Jennifer Sulla, Esq. SPR19/469 Page4 March 14, 2019 in or submitted as part of "employment applications"-indeed, that was the situation in this case. It is beyond doubt that resumes are an integral part of the hiring process ... and are therefore 'useful in makmg employment [1.e. hmng] decIS1ons' relatmg to a specific individual." However, there is a distinction between applicant created resumes and employer-created job applications, which are two separate documents. As interpreted by the Supreme Judicial Court, a records custodian is permitted to withhold a completed job application pursuant to the first clause of Exemption (c ) of the Public Records Law. See Wakefield, 431 Mass. 792. In response to Mr. Sharma's request, EOEEA, in its discretion, provided the names, education (degrees) and the computer science certifications of one employee, which were extracted from the resumes of the five identified employees. The work experience/job history of the employees listed on their resumes was withheld in its entirety under the first clause of ( c) . The public can reasonably expect the disclosure of qualifications of job applicants for public (government) employment as well as those of public employees. Attorney General v. School Committee of Northampton, 375 Mass. 127, 130 (1978). Therefore, the education, employment history, academic achievements and qualifications are public information. Associated General Contractor v. U.S. Environmental Protection Agency, 488 F. Supp. 861, 863 (D.C. Nev. 1980). Such information is routinely presented in both professional and social settings. See Eskaton Monterey Hospital v. Myers, 184 Cal. Rptr. 840, 843 (1982). Therefore, I find that the use of Exemption (c) to withhold the employer-created job application is proper; but, the withholding the work experience of the employees that is listed on the resumes, and relevant to their employment with the EOEEA may not be withheld under Exemption ( c) . Conclusion Accordingly, EOEEA is ordered to provide Mr. Sharma with the relevant work experience from the resumes of the five identified employees, 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: Mr. Avnish Sharma