Scott Merzbach v. Amherst, Town of - Office of the Town Clerk (SPR 20191057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 5, 2019 SPR19/1057 Margaret Nartowicz, CMC Town Clerk/ Records Access Officer Town of Amherst Town Hall 4 Boltwood A venue Amherst, MA O1 002 Dear Ms. Nartowicz: I have received the petition of Scott Merzbach of the Daily Hampshire Gazette appealing the response of the Town of Amherst (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 24, 2019, Mr. Merzbach requested copies of "all Community Action Forms submitted to the Town since Dec. 1, 2018." The Town provided a response on May 24, 2019, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town's response, Mr. Merzbach petitioned this office and this appeal, SPR19/1057, 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 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); 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. 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

Margaret Nartowicz, CMC SPR19/1057 Page2 June 5, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. ' th The Town's May 24 response In its May 24, 2019 response, the Town claims Exemption (c) of the Public Records Law to withhold responsive records from disclosure. 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). First clause ofE xemption (c) - personnel 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 Publishing Co. v. Register of Probate for Norfolk County, 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).

Margaret Nartowicz, CMC SPR19/1057 Page 3 June 5, 2019 Under the first clause of Exemption (c), citing Wakefield and other case law, the Town indicates that" ... records submitted to the Town in support of appointment to Town boards and committees are used as part of an evaluative process considering the merits of various candidates. Resumes are critical to determine the qualification of an individual to be appointed to any position, be it an employment position directly with the Town or an appointment to serve on a multiple member body." The Town states that it" ... has custody of these documents solely because the applicants for appointment are seeking the same. In other words, such records are 'useful in making employment decisions regarding an employee,' meeting the definition of 'personnel records' identified by the court in Wakefield. Wakefield, 431 Mass. at 798. As appointing authority, therefore, the Town asserts the application of the first clause of exemption (c) to withhold the CAFs and any supporting information in their entirety." Second clause ofE xemption (c) - privacy 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. 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. Under the second clause of Exemption (c), the Town states that its" ... recently adopted Charter provides that the Town Manager is the appointing authority for the vast majority of appointees, subject to confirmation by the Town Council in only limited cases." Citing to the Gerstein and Northampton decisions, the Town asserts that "[i]t has been conclusively established that candidates for employment in the early stages of a hiring process have a privacy

Margaret Nartowicz, CMC SPR19/1057 Page 4 June 5, 2019 interest in the fact of their candidacy. See Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465 (1989); Attorney General v. School Committee of Northampton, 375 Mass. 127 (1978) .... These cases clearly underscore that persons who are not hired or appointed to a governmental position have a greater privacy interest in their application and documentary submissions than a person who is so hired or appointed." Further, the Town states that because of the appointment process in the updated Charter, where the Town Manager is the appointing authority for the vast majority of appointees," ... most applicants for positions appointed by the Town Manager would have no reason to expect public discussion of their candidacy and, therefore, disclosure of materials submitted by such applicants would constitute an unreasonable and serious invasion of their personal privacy." The Town indicates that "[t]he CAF also includes information, which, although labeled 'optional' is personal in nature, including, for example, self-evaluative statements as to race and gender. Moreover, where direct appointments, or confirmation of appointments, by the Town Council are limited, and where the Town Manager only recommends persons to the Town Council for confirmation who have already been appointed, most applicants would not have any expectation that their qualifications or motivations for seeking office would be publicly questioned or reviewed, particularly if they were not recommended for appointment. ... Thus, individuals submitting CAFs would have no reason to anticipate that their applications would be handled differently than previously, particularly in light of the changes to the Town's form of government." The Town also states that" ... although a person appointed to a part-time appointed position might not have to quit their job to serve in such a position, note that applicants for appointment to such positions do have a privacy interest in the fact of their candidacy. A person submitting their application to the Town Manager, a single appointing officer, has no expectation, and does not agree, to public review or interrogation of his or her candidacy at any stage in the process other than the confirmation stage, as the Open Meeting Law is not applicable to the Town Manager." The Town asserts that" ... disclosure that a person applied for an appointment to a position on a multiple-member body, regardless of the appointing authority, and did not receive that appointment may cause such person embarrassment and negatively impact that person's standing and reputation in the community. Ultimately, the impact of such circumstances may reduce the pool of qualified candidates for appointment to municipal positions. Further, resumes, applications, and other documentary materials submitted by such applicants would constitute personal information the disclosure of which would constitute an umeasonable, substantial and serious invasion of personal privacy ...." Applications and resumes pertaining to candidates not hired A general applicant who fails to advance past the initial application stage maintains an undiminished privacy interest in his or her identity, thus, certain information may be withheld pursuant to the second clause of Exemption (c). Northampton, 375 Mass. at 132 n.5. Based on the Town's response, I find the Town has met its burden to show that the candidates that were not hired or appointed have a privacy interest in these matters. However, as described above, the

Margaret Nartowicz, CMC SPR19/1057 Page 5 June 5, 2019 balancing test for Exemption ( c) 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 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. 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, it is unclear why the Town cannot redact identifying information and provide remaining information, such as educational and professional training and experience, in order to shed light on the applicant pool while also protecting privacy interests. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Further, the Town is advised that once applicants have undergone a preliminary screening, the privacy interests of the individuals selected for further consideration are less substantial than the privacy interests of applicants who do not reach that level of consideration. Northampton, 375 Mass. at 130. An applicant's identity becomes progressively less personal as the individual approaches the final stages of the applicant screening process. Therefore, an applicant who reaches the level of a semi-finalist has become elevated to a greater position of public trust and should expect open and public discussion of his candidacy. Id. Conclusion Given that the Town has not met its burden to withhold responsive records, in their entirety, pursuant to Exemption (c), the Town is ordered to review the records, redact where necessary and provide Mr. Merzbach 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. The Town may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Scott Merzbach