Kareem A. Morgan v. Braintree, Town of - Town Clerk (SPR 20192216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 15, 2019 SPR 19/2216 Karen M. Shanley Human Resources Director Town of Braintree One JFK Memorial Drive Braintree, MA 02184 Dear Ms. Shanley: I have received the petition of Attorney Kareem Morgan, on behalf of Karen MacAleese, appealing the response of the Town of Braintree (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. MacAleese requested "the resumes and cover letters of all the candidates for the Braintree Chief of Police position ... .I am also requesting the names of the ten selected candidates that interviewed with the panel and the names of the selected candidates who interviewed with the Mayor. Also, please include any and all documentation/correspondence either written or electronic concerning the process from the beginning to end." 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); 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

Karen M. Shanley SPR19/2216 Page 2 November 15, 2019 The Town's October 24111 response In its October 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 unwatTanted 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 pe1iaining 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). Neve1iheless, 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). Under the first clause of Exemption (c), citing Wakefield and other case law, the Town indicates that "[w]here this request seeks copies ofresumes and cover letters submitted as part of an application for employment, it encompasses information contained within the core categories

Karen M. Shanley SPR19/2216 Page 3 November 15, 2019 of personnel information that is exempt from disclosure." The Town continues: "[t]he same is true for the names of the ten selected candidates that interviewed with the panel and the names of the selected candidates who interviewed with the Mayor." The personnel clause of Exemption ( c) applies to certain information related to a particular employee. See Wakefield, 431 Mass. at 798. Since candidates not hired or appointed by the Town did not become employees, the personnel clause will not operate to withhold information of these individuals. As such, I find the Town has not met its burden to withhold responsive records under the personnel clause of Exemption ( c ). 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 secortd 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. In its October 24th response, the Town indicates that "disclosure of the requested information would serve as undue invasion of those individual's privacy." The Town further explains that "the decision to seek new employment is one of a highly personal nature that would not commonly be shared with the public."

Karen M. Shanley SPR19/2216 Page4 November 15, 2019 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, ce1iain 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 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 a11d compensating public employees. See Globe Newspaper Co. v. Exec. Office of Admin. & Fin., 28 Mass. L. Rep. 499 (2011). As such, His 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). 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 Ms. MacAleese 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, ~~ Supervisor of Records cc: Karen MacAleese Kareem Morgan, Esq.